             Case: 15-15660    Date Filed: 05/25/2016   Page: 1 of 6


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-15660
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cv-01362-LMM

CHERISE FUNDERBURK,

                                                              Plaintiff-Appellant,

                                      versus

FANNIE MAE,
a.k.a. Federal National Mortgage Association,
BANK OF AMERICA,

                                                           Defendant-Appellees.

                          ________________________

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

                                 (May 25, 2016)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Cherise Funderburk appeals pro se the grant of summary judgment to Fannie

Mae, also known as Federal National Mortgage Association (“Fannie Mae”) and
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Bank of America, N.A. (“Bank of America”) in her promissory estoppel suit and

claim for attorney’s fees. She argues that: (1) the district court erred in excluding

Funderburk’s evidentiary submission -- of alleged statements by a Bank of

America employee -- for containing inadmissible hearsay, and that her attorney

ineffectively failed to get the statements admitted into evidence using Federal

Rules of Evidence 803 and 406; and (2) the district court erred in granting the

motion for summary judgment in favor of Fannie Mae and Bank of America on

Funderbunk’s promissory estoppel claim. Fannie Mae and Bank of America argue

that the district court properly granted their motion for summary judgment on all

claims. After thorough review, we affirm.

      We review a district court’s evidentiary rulings for abuse of discretion.

Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007). We review de

novo a grant of summary judgment. Romero v. Drummond Co., 552 F.3d 1303,

1313 (11th Cir. 2008). Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally construed. Boxer X

v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).

      First, we are unpersuaded by Funderburk’s claim that the district court

abused its discretion in excluding evidence for containing inadmissible hearsay.

Evidence submitted in support of a summary judgment motion must set out facts

that would be admissible under the Federal Rules of Evidence. Fed. R. of Civ. P.


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56(c)(4). Hearsay is defined as an out-of-court statement offered in evidence to

prove the truth of the matter asserted. Fed. R. Evid. 801(c). Rule 803 provides

exceptions to the rule against hearsay, such as a recorded recollection, which may

be admitted into evidence. Fed. R. Evid. 803(5). Rule 406 provides that evidence

of a person’s habit or an organization’s routine practice may be admitted to prove

that on a particular occasion the person or organization acted in accordance with

the habit or routine practice. Fed. R. Evid. 406.

      Rule 801(d)(2)(D) provides that a statement by a party’s agent concerning a

matter within the scope of the agency is admissible evidence. The Rule requires

the proffering party to lay a foundation to show that the declarant was an agent.

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1566 (11th Cir. 1991).

Merely showing that a statement was made by one who is identified generally as

an employee of the party, without some further proof as to the scope of his

employment, does not establish agency or scope of the relationship. Id.

      Here, Funderburk sought to have admitted alleged statements by a Bank of

America employee promising her that if she modified her loan she would avoid

foreclosure, and that if she paid all past due payments, her loan would be modified.

However, these alleged statements are hearsay because they are out-of-court

statements admitted for the truth of the matter asserted -- namely, that Bank of

America made a promise to modify Funderburk’s loan.            They do not fit the


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exception in Rule 803 because they are not recorded. Nor do they fit the exception

in Rule 406 because Funderburk provides no evidence of a routine or habit to

which Bank of America conformed in making the statements. The statements also

are not admissible under Rule 801(d)(2)(D) because Funderburk did not identify

the declarant or lay the proper foundation to show that the declarant was both an

agent and acting within the scope of the agency relationship.

      As for her claim that her attorney was ineffective for failing to have the

statements properly admitted, we again disagree. A plaintiff in a civil case has

neither a constitutional nor statutory right to effective assistance of counsel, and

ineffective assistance of counsel does not provide a valid ground for appeal in a

civil case. Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522 (11th Cir. 1983).

Thus, Funderburk’s ineffective assistance claim fails.

      Next, we are unconvinced by Funderburk’s claim that the district court erred

in granting summary judgment to Fannie Mae and Bank of America on her

promissory estoppel claim. Summary judgment under Fed. R. Civ. P 56(a) is

proper if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To withstand a summary

judgment motion, the non-moving party must establish that, based on the evidence


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in the record, there can be more than one reasonable conclusion as to the proper

verdict. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). The

non-moving party must set forth specific facts showing there is a genuine issue for

trial. Celotex, 477 U.S. at 324. If the non-moving party presents insufficient proof

concerning an essential element of the claim, the court is required to grant

summary judgment. Id. at 323.

      To prevail on a promissory estoppel claim, a plaintiff must prove that (1) the

defendant made certain promises, (2) the defendant should have expected that the

plaintiff would rely on such promises, and (3) the plaintiff did in fact rely on such

promises to her detriment. Doll v. Grand Union Co., 925 F.2d 1363, 1371 (11th

Cir. 1991). Additionally, inadmissible hearsay cannot be considered in ruling on a

motion for summary judgment.       Macuba v. Deboer, 193 F.3d 1316, 1322 (11th

Cir. 1999).

      Construing Funderburk’s initial brief liberally as including arguments

against the merits of the district court’s order granting summary judgment, we

conclude that Funderburk has not established a case for promissory estoppel

against Fannie Mae and Bank of America. Among other things, Funderburk has

not established that the defendants made a promise. There was nothing in writing

to show any alleged promise, nor any identified agent’s statements. The only

statements tending to show a promise were properly excluded as hearsay, and


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cannot be considered as evidence. Thus, she has failed to show any material issue

as to promissory estoppel, and the district court did not err in granting summary

judgment to Fannie Mae and Bank of America on this claim.

      Finally, to the extent that Fannie Mae and Bank of America argue that the

district court properly granted their motion denying Funderburk’s claim for

attorney’s fees, we agree. A party’s claim for attorney’s fees is contingent upon

the success of her underlying claim or claims. Gilmour v. Am. Nat. Red Cross,

385 F.3d 1318, 1324 (11th Cir. 2004). In this case, Funderburk is not entitled to

attorney’s fees because she did not prevail on her promissory estoppel claim or any

other claim. Accordingly, the district court properly granted summary judgment.

      AFFIRMED.




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