           Case: 14-14356   Date Filed: 08/18/2015   Page: 1 of 11


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14356
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-01488-WCO

FIRST CITIZENS BANK AND TRUST COMPANY, INC.,

                                                        Plaintiff-Appellee,

                                  versus

RIVER WALK FARM, L.P.,
COVINGTON RIVER PARTNERS, L.P.,
LIBERTY LAND GROUP, LLC,
ROBERT A. ANCLIEN,
TAYLOR B. KNOX,

                                                       Defendants-Appellants.

                       ________________________

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

                             (August 18, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:
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      Appellants River Walk Farm and its guarantors defaulted on an

approximately $6 million loan. First Citizens Bank & Trust Company (FCBT), the

holder of the promissory note, filed this action to recover a deficiency judgment.

The district court granted summary judgment to FCBT and awarded damages

totaling $7,112,025.91. On appeal, River Walk and its guarantors contend that the

district court erred in finding that there was sufficient evidence to establish the

amount of damages owed under the note.

                                        I.

      The underlying facts are not in dispute. In 2009, River Walk took out a loan

for over $6 million from Georgian Bank. River Walk executed a promissory note

in favor of Georgian Bank and secured the note with the security deeds to real

property in Newton County, Georgia. Covington River Partners, Liberty Land

Group, Robert Anclien, and Taylor Knox executed individual guaranties under the

note. Covington River provided a security deed to real property as collateral for its

guaranty. Georgian Bank later closed and entered receivership.

      The FDIC then entered into a Purchase and Assumption Agreement with

FCBT under which FCBT took possession of, among other loans, the note, the

security deeds, and the guaranties for the River Walk loan. River Walk defaulted

on the loan in 2010. Although River Walk and the guarantors (hereinafter, River

Walk) were notified of the default and given time to cure, they made no payments.


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In January 2011, FCBT foreclosed on the River Walk and Covington River

properties in an attempt to satisfy the outstanding debt. It obtained $1,215,500 for

the River Walk property and $995,000 for the Covington River property.

       FCBT filed a complaint in federal court against River Walk for breach of

contract seeking to obtain the deficiency remaining under the note.1 FCBT alleged

the outstanding indebtedness included principal in the amount of $4,474,848.60,

accrued interest in the amount of $1,690,498.27, and continued post-default

interest of $1,988.82 per day.

       FCBT moved for summary judgment, arguing that it had established its

prima facie case by showing it was the holder of the executed note and guaranties.

To show its damages, FCBT submitted an affidavit from Richard Spink. In the

affidavit, Spink stated that he was the current Senior Vice President of FCBT and

the former Executive Vice President of Georgian Bank. In those capacities, he was

the custodian of the business records and was familiar with River Walk’s loan and

the record-keeping methods of both banks. He then explained the outstanding

balance of principal and interest and the amounts received from the foreclosures

that were credited back to the outstanding debt. He referenced the note, the

guaranties, the default letter, and the notice of foreclosure, all of which were

       1
          Attached to the complaint were copies of the note and guaranties, along with the
allonge, which is a piece of paper attached to the note for endorsement when there is no room for
endorsement on the note itself. See Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 758
S.E.2d 145, 151 n.14 (Ga. Ct. App. 2014).
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attached to the complaint. Spink calculated the total outstanding indebtedness as

$6,579,021.75, which included attorney’s fees in the amount of 15 percent of the

outstanding debt. Attached to the affidavit was a one-page payoff statement. The

district court granted FCBT’s motion for summary judgment, awarding damages of

$4,474,848.60 in principal and attorney’s fees and post-default interest of

$2,637,177.31, for a total award of $7,112,025.91.

      This is River Walk’s appeal.

                                        II.

      We review de novo the district court’s grant of summary judgment. Josendis

v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011). We

apply the same legal standards as the district court. Centurion Air Cargo v. UPS,

420 F.3d 1146, 1149 (11th Cir. 2005). Summary judgment is appropriate if “there

is no genuine dispute as to any material fact” and “the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      On appeal, River Walk argues that: (1) Spink’s affidavit was insufficient

evidence to support the award of damages; (2) a shared-loss provision in the FDIC

purchase agreement precluded any claim of actual damages because the FDIC was

obligated to reimburse FCBT for any loss; and (3) Spink’s affidavit incorrectly




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determined the amount of attorney’s fees as 15 percent of the outstanding debt

rather than costs actually incurred.2 We address each issue in turn.

                                              III.

       The district court did not err in finding Spink’s affidavit sufficient to

establish the amount of damages owed under the note.

       It is undisputed that FCBT is the holder of the note, that the note and the

guaranties were duly executed by River Walk and the guarantors, and that they are

in default. Therefore, FCBT established a prima facie right to judgment as a

matter of law and “[t]he burden . . . shift[ed] to defendants to produce evidence

showing a different amount owed and thereby creating a jury issue.” Morey v.

Brown Mill Co., 469 S.E.2d 387, 390 (Ga. Ct. App. 1996); see also Fielbon Dev.

Co., LLC v. Colony Bank of Houston Cnty., 660 S.E.2d 801 (Ga. Ct. App. 2008)

(“A plaintiff seeking to enforce a promissory note establishes a prima facie case by

producing the note and showing that it was executed. Once that prima facie case




       2
          In the district court, River Walk also argued that Spink’s affidavit was inadmissible
hearsay. That argument is mentioned in River Walk’s initial brief on appeal, but only in passing
and without supporting arguments or authority. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he
either makes only passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”). River Walk attempts to resurrect its challenge to the admissibility of
the affidavit in its reply brief, but it is too late. See id. at 683 (collecting decisions where we
declined to address arguments raised for the first time in a reply brief). In any event, we agree
with the district court that Spink’s affidavit was admissible evidence under the business records
exception to the hearsay rule. See Fed. R. Evid. 803(6).
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has been made, the plaintiff is entitled to judgment as a matter of law unless the

defendant can establish a defense.”) (quotation marks omitted).

       The only question that remains, then, is whether River Walk has offered

sufficient evidence to raise a triable issue of fact concerning the amount of

damages. 3 But River Walk has offered no evidence upon which a jury could

conclude that the amount of damages outlined by Spink is incorrect. Instead, it

merely argues that Spink’s affidavit is not enough to show the amount owed on the

note. That argument, without more, is not enough to defeat summary judgment

under Rule 56. See Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 2677

(2009) (“[W]here the nonmoving party ‘will bear the burden of proof at trial on a

dispositive issue,’ the nonmoving party bears the burden of production under Rule

56 to ‘designate specific facts showing that there is a genuine issue for trial.’”)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986));

       3
          This question is governed by federal law. See Hutcherson v. Progressive Corp., 984
F.2d 1152, 1155 (11th Cir. 1993) (stating, in the context of a damages issue, that state law
“provides the controlling substantive law” but “federal law governs the sufficiency of the
evidence necessary to preclude a grant of summary judgment”); ABC-Paramount Records, Inc.
v. Topps Record Distrib. Co., 374 F.2d 455, 460 (5th Cir. 1967) (“[I]n a diversity case, state law
controls as to the substantive elements of plaintiff’s case and of defendant’s defense, but the
sufficiency of the evidence to raise a question of fact for the jury is controlled by federal law.”)
(quotation marks omitted). For that reason, River Walk’s reliance on Georgia Court of Appeals
decisions is misplaced. Importantly, we are not asked here to decide what damages are
recoverable, or what elements must be proven to recover those damages, or whether an award of
damages is excessive — or any other substantive question that would be governed by state law.
See, e.g., Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992); T.D.S. Inc. v. Shelby
Mut. Ins. Co., 760 F.2d 1520, 1554 (11th Cir. 1985); Quality Foods, Inc. v. U.S. Fire Ins. Co.,
715 F.2d 539, 542 & n. 2 (11th Cir. 1983); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734,
737–38 (5th Cir. 1980). The only question we face is whether River Walk has offered sufficient
evidence to create a triable issue on the amount of damages owed under the terms of the note.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986)

(“[A] party opposing a properly supported motion for summary judgment may not

rest upon mere allegation or denials of his pleading, but must set forth specific

facts showing that there is a genuine issue for trial.”).

                                              IV.

       River Walk next argues that FCBT cannot prove that it suffered any “actual

damages” as a result of its default because, under the terms of the FDIC purchase

agreement, certain losses are shared between the assuming bank (FCBT) and the

FDIC. 4 To make that argument, River Walk relies exclusively on the Fifth

Circuit’s decision in Amwest Savings Ass’n v. Statewide Capital Inc., 144 F.3d 885

(5th Cir. 1998).

       Amwest is not binding on this Court. Even if it were, it is distinguishable.

Suffice it to say that this case, unlike Amwest, concerns a promissory note, which is

a negotiable instrument that carries an absolute obligation to pay. See Ga. Code

§ 11-3-104(a); L.D.F. Family Farm, Inc. v. Charterbank, 756 S.E.2d 593, 597 (Ga.

Ct. App. 2014) (“A promissory note is an unconditional contract whereby the

       4
          FCBT cites our decision in Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704
F.3d 927 (11th Cir. 2013), in support of the proposition that River Walk does not have standing
to rely on the terms of the purchase agreement as a defense to liability on the note. In Interface
Kanner, we held that a plaintiff did not have standing to enforce an agreement that it did not
enter into or stand to benefit from. See id. at 931–33. But River Walk is not a plaintiff and it is
not seeking to enforce the purchase agreement; it is merely arguing that FCBT’s losses may have
been recovered through the agreement and therefore do not qualify as recoverable damages in
this lawsuit. We have never required a defendant to establish “standing” to make an argument
about what damages he does or does not owe, and we will not do so here.
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maker engages that he will pay the instrument according to its tenor. It is well

established that a promissory note may not be modified by the imposition of

conditions not apparent on its face.”) (quotation marks omitted). Once FCBT

purchased the note at issue here, it was entitled to enforce it according to its terms

— meaning for the full amount due and payable under the note — regardless of

how much it paid for the note or whether it received other monies from third

parties (including the FDIC) as a result of losses suffered due to River Walk’s

default. See Ga. Code § 11-3-203(b) (stating that the transfer of a negotiable

instrument, “whether or not the transfer is a negotiation, vests in the transferee any

right of the transferor to enforce the instrument”).

      We also note that if the purchase agreement did in fact result in FDIC

payments to FCBT for losses incurred as a result of River Walk’s default, the

agreement further requires FCBT to reimburse to the FDIC any monies it recovers

from this lawsuit. In other words, FCBT will not benefit from “double recovery”;

instead, it will receive what it would have received had River Walk not defaulted

on its obligation under the note, which is precisely what it is entitled to under

Georgia law. See Ga. Code § 13-16-1 (providing that “[d]amages are given as

compensation for the injury sustained as a result of the breach of a contract”).

      For these reasons, we reject the argument that the shared-loss provision of

the purchase agreement precludes FCBT from showing actual damages.


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                                         V.

      Finally, River Walk argues that the court improperly determined the amount

of damages by using a flat 15 percent rate for attorney’s fees instead of the amount

actually incurred. We review the district court’s award of attorney’s fees for abuse

of discretion. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th

Cir. 1999).

      Under Georgia law, a court will enforce an attorney’s fee provision in a

promissory note up to 15 percent of the principal and interest owing on the note.

See Ga. Code § 13-1-11(a). But the statute does not mandate the recovery of 15

percent attorney’s fees in every case. See S&A Indus., Inc. v. Bank Atlanta, 543

S.E.2d 743, 749 (Ga. Ct. App. 2000).

      In this case, in the event of default, the note provides the following:

      Lender may hire or pay someone else to help collect this Note if
      Borrower does not pay. Borrower will pay Lender that amount. This
      includes, subject to any limits under applicable law, Lender’s costs of
      collection, including court costs and fifteen percent (15%) of the
      principal plus accrued interest as attorney’s fees . . . .

So if FCBT paid someone else to collect payment under the note, River Walk was

required to pay “that amount” which included the “costs of collection” and “15

percent of the principal plus accrued interest fees.” At issue is whether the phrase

“that amount” limits the award to only those costs actually incurred.




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      The district court determined that the language was clear and unambiguous.

We disagree that the terms are unambiguous, but arrive at the same result using

ordinary rules of contract interpretation. Certain Underwriters at Lloyd’s of

London v. Rucker Constr., Inc., 648 S.E.2d 170, 174 (Ga. Ct. App. 2007)

(explaining that where a contract’s terms are ambiguous, “the Court must attempt

to resolve the ambiguity by applying the relevant canons of contract

construction”).

      It is possible to construe the phrase “Borrower will pay Lender that amount”

as limiting the fees to the amount actually incurred. But this phrase cannot be read

in isolation. The rest of the paragraph explains that “that amount . . . includes . . .

fifteen percent (15%) of the principal plus accrued interest as attorney’s fees . . . .”

See Horwitz v. Weil, 569 S.E.2d 515, 516 (Ga. 2002) (“The entirety of the

agreement should be looked to in arriving at the construction of any part . . . . The

contract is to be considered as a whole, and each provision is to be given effect and

interpreted so as to harmonize with the others.” (internal citation omitted)).

      Moreover, the court properly applied the same 15 percent fee to the

guarantors. Under the terms of the guaranty, “Guarantor agrees to pay upon

demand all of the Lender’s costs and expenses, including Lender’s attorney’s fees

and Lender’s legal expenses, incurred in connection with the enforcement of this

Guaranty.” But the guaranty also contains the following Indebtedness Clause:


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“Guarantor absolutely and unconditionally guarantees full and functional payment

and satisfaction of Indebtedness . . . .” The guarantors argue that their fees must be

limited to the amount incurred due to the limiting language in the guaranty. We

disagree. The phrase in the guaranty limiting fees to the amount incurred must be

read in conjunction with the Indebtedness Clause, which requires the guarantors to

“absolutely and unconditionally” cover fees. See Horwitz, 569 S.E.2d at 516

(considering the agreement in its entirety).

      AFFIRMED.




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