               Case: 16-14801       Date Filed: 01/11/2018       Page: 1 of 15


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-14801
                               ________________________

                      D.C. Docket No. 3:13-cv-00191-MCR-CJK


LNV CORPORATION,

                                                                        Plaintiff-Appellant,

                                            versus

BRANCH BANKING AND TRUST COMPANY,

                                                                       Defendant- Appellee.
                               ________________________

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

                                     (January 11, 2018)

Before MARCUS and NEWSOM, Circuit Judges and BUCKLEW, * District
Judge.

PER CURIAM:




*
  Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
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                                          I

      This case features a contract dispute between two companies that entered

into a “participation agreement.” In a traditional participation agreement, a “lead”

bank loans money to a borrower and then sells a piece of the loan to a “participant”

bank. Here, a lead bank loaned money to finance a Florida real-estate venture in

2005, and a participant bank joined 23.08% of the action via a participation

agreement. The collapse of the real-estate market in the late 2000s wiped out the

original parties to the agreement and sank the venture itself, pushing the borrowers

into default. In 2009, our appellee Branch Banking and Trust Company

(“BB&T”) acquired the lead bank’s portfolio, which included two loans—the

“Owls Head” loan and the “JLD” loan—both of which financed portions of the

defunct real-estate development. At around the same time, appellant LNV

Corporation acquired the 23.08% participant’s share in the Owls Head loan for

$197,345, thus placing BB&T and LNV in the agreement’s lead-participant

relationship vis-à-vis the Owls Head loan.

      As lead, BB&T immediately sued the defaulted Owls Head borrowers and

guarantors, seeking to recover the value of the loans. During the litigation, the

value of collateral underlying both loans dropped dramatically, and BB&T

accordingly charged down the loans’ book values. The Owls Head loan had a

book value of $16.2 million when BB&T acquired it in May 2009, but by July


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2011 BB&T had charged it down to $1.47 million. Similarly, the JLD loan had a

book value of $5.9 million in August 2010, but in June 2011 BB&T charged it

down to $2.48 million.

       At a court-ordered mediation in August 2011, Douglas Duncan—an original

Owls Head guarantor who was personally liable on the loan—and BB&T agreed to

assign both the JLD and Owls Head loans to one of Duncan’s companies for $10

million. This transaction between BB&T and Duncan effectively dissolved the

loans, terminating the rights of those who had previously held an interest in

them—that is, BB&T and LNV—against Duncan. Of this $10 million settlement,

BB&T unilaterally—and LNV says suspiciously—allocated $2.5 million to the

Owls Head loan, which had $34.6 million outstanding, and $7.5 million to the JLD

loan, which had $9.6 million outstanding. These figures resulted in a 7.2%

recovery on the Owls Head loan, of which LNV owned 23.08%, and a 78.3%

recovery on the JLD loan, which BB&T owned alone. The loans’ book values—

trading at roughly 50% discounts when BB&T acquired them in 2009—had since

diverged even further from their face values; according to BB&T’s analysis, the

Owls Head loan was worth $1.47 million while the JLD loan was worth $2.48

million. 1



1
  In defending what appeared to be disproportionate allocations—particularly relative to the
loans’ respective face values—BB&T has consistently maintained that the division reflected the
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       Shortly after the August mediation, BB&T informed LNV of Duncan’s $2.5

million offer for the Owls Head loan, but did not disclose the total $10 million

settlement amount, the allocation, or the fact that it had already reached an

agreement with Duncan to settle the lawsuit. In September 2011, LNV rejected

Duncan’s settlement offer. Nevertheless, the following month, BB&T informed

LNV that it intended to accept Duncan’s offer, and in November, BB&T and

Duncan closed on the sale and assignment of the loans. Once it received the funds,

BB&T promptly forwarded to LNV $577,000—23.08% of the $2.5 million

purchase price allocated to Owls Head. LNV sued BB&T in September 2012,

asserting that BB&T had breached the participation agreement—in particular, by

materially changing the loans’ terms without LNV’s consent—and thereby harmed

LNV.

       Following a bench trial, the district court held that although BB&T had

breached the agreement, LNV “failed to prove damages on the breach of contract

claim.” The court thus awarded LNV zero damages (and separately denied




fact that the collateral securing the JLD loan had a higher value than that securing the Owls Head
loan and that the JLD litigation was less complex than the Owls Head litigation.


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BB&T’s request for attorneys’ fees). LNV timely appealed to this Court. We

affirm, largely for the reasons explained by the district court.2

                                              II

       LNV presents a panoply of issues and arguments on appeal, all of which

revolve around one central contention: that the district court erred in awarding

LNV no damages. Despite the participation agreement’s complicated nature, we

agree with the district court that the case is resolvable by reference to fundamental

tenets of contract law.

       By its terms, the participation agreement is “governed by, and [is to be]

construed in accordance with, the law of the State of Georgia.” It is hornbook law

in Georgia, as elsewhere, that in order to recover damages for breach of contract, a

plaintiff must separately prove both breach and damages. See Simmons v. Boros,

335 S.E.2d 662, 663 (Ga. Ct. App. 1985), aff’d, 341 S.E.2d 2 (Ga. 1986)

(explaining that plaintiff must show “both the breach and the damage”) (emphasis

in original); see also Norton v. Budget Rent A Car System, Inc., 705 S.E.2d 305,

306 (Ga. Ct. App. 2010) (“The elements for a breach of contract claim in Georgia

are the (1) breach and the (2) resultant damages (3) to the party who has the right


2
  BB&T crossed-appealed, asking us to reverse the district court’s determination that BB&T
breached the agreement. Because the district court’s breach ruling was not necessary to its
decision in BB&T’s favor, it has no preclusive effect, See Bobby v. Bies, 556 U.S. 825, 835
(2009). Accordingly, because BB&T prevailed in the district court, and is not otherwise
aggrieved by that court’s breach ruling, we dismiss BB&T’s cross-appeal. See Agripost, Inc. v.
Miami-Dade Cnty., ex rel. Manager, 195 F.3d 1225, 1229–30 & n. l2 (11th Cir. 1999).
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to complain about the contract being broken.”) (internal quotations, citations

omitted).

      Whether BB&T did or didn’t breach the participation agreement—the

district court found that it did—is a difficult question. The contract seems to us to

be a maze of internally contradictory provisions that interact with each other in

inconsistent ways. Fortunately for us, the issue of breach is ultimately irrelevant

because we hold that the district court correctly concluded that LNV failed to

prove its damages with sufficient (or really any) certainty. Bad facts make bad

law—so too with bad contracts. Since we needn’t determine whether BB&T

breached the agreement, we won’t. Instead, we’ll move directly to a consideration

of LNV’s damages arguments.

      First, some contract-damages basics. Under Georgia law, damages for

breach of contract “are given as compensation for the injury sustained as a result of

the breach of a contract,” and “[d]amages recoverable for a breach of contract are

such as arise naturally and according to the usual course of things from such

breach and such as the parties contemplated, when the contract was made, as the

probable result of its breach.” Ga. Code Ann. §§ 13-6-1, 13-6-2; see also, e.g.,

Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions,

Vol. I: Civil Cases, § 18.010 (5th ed. 2017) (“Damages recoverable for a breach of

contract are such as arise naturally and according to the usual course of things from


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the breach and such as the parties contemplated when the contract was made as the

probable result of the breach.”). Accordingly, Georgia courts have explained that a

plaintiff suing for breach of contract should, if successful, recover the full benefit

of his bargain, but no more. See Al & Zack Brown, Inc. v. Bullock, 518 S.E.2d

458, 461 (Ga. Ct. App. 1999) (explaining that a damage award should “put [the

plaintiff] in as good a position as if the defendant had fully performed the

contract”) (internal quotation marks omitted); Gainesville Glass Co., Inc. v. Don

Hammond, Inc., 278 S.E.2d 182, 185–86 (Ga. Ct. App. 1981) (“[A]n injured party

cannot be placed in a better position than he would have been in if the contract had

not been breached.”).

      Importantly here, Georgia courts have held—in common with the prevailing

understanding—that while a plaintiff need not prove a precise measure of

damages, it must provide “data sufficient to enable [the factfinder] to estimate with

reasonable certainty the amount of the damages.” Simmons, 335 S.E.2d at 663.

The factfinder, that is, “cannot be left to speculation, conjecture and guesswork.”

Id.; see also, e.g., McCannon v. McCannon, 499 S.E.2d 684, 686 (Ga. Ct. App.

1998) (damages must be proved “to a reasonable certainty”); Restatement (Second)

of Contracts § 352 (1981) (“Damages are not recoverable for loss beyond an

amount that the evidence permits to be established with reasonable certainty.”). In

this lawsuit, LNV thus had the burden of proving a “reasonabl[y] certain[]”


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estimation of its expectation interest—or whatever benefit its bargain with BB&T

warranted. As we explain below, we agree with the district court that LNV failed

to prove this essential cornerstone.

                                           A

      Before getting into the specifics of LNV’s damages claim, we must first

address LNV’s preliminary contentions (1) that Georgia law tasks it with only a

minimal burden of proof and (2) that the district court’s analogy to legal-

malpractice cases was legally erroneous.

                                           1

      Burden of proof—how much, and who has it—features prominently in

LNV’s damages argument. LNV attempts to minimize its burden with two lines of

argument: first, it argues that “[o]nce LNV established the amount it was

presumptively owed, the burden shifted to BB&T to prove any reduction of this

amount”; second, LNV contends that “[o]nce the fact of causation is established,

the burden of proving damages is much less severe.” Br. of Appellant at 26, 39.

Neither argument withstands scrutiny. To support its first line of attack, LNV

focuses on dicta in an unrelated antitrust opinion, Willesen v. Ernest

Communications, Inc., 746 S.E.2d 755 (Ga. Ct. App. 2013). Even setting

Willesen’s off-point-ness aside, LNV fails to meet the seemingly lighter burden




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that it seeks to invoke because—as we explain below—LNV failed (to use its

phrase) to “establish[] the amount it was presumptively owed.”

      LNV’s second argument fares no better. LNV repeatedly suggests that it

need not prove damages with exact precision because it effectively proved

causation of damages—i.e., breach—even if it did not prove these damages’

precise quantum. But this supposedly reduced burden of proof is really just the

well-established “reasonable certainty” requirement, already discussed, which—for

reasons we will also explain—LNV fails to meet.

                                          2

      LNV’s second broadside is to suggest that the district court’s invocation of

damage calculations in legal-malpractice suits constituted reversible legal error.

LNV’s contention is unavailing. Not only does LNV overstate the district court’s

reliance on the malpractice framework—although the court noted that it found the

approach “instructive,” nowhere in its opinion did the court claim to adopt the

malpractice standards wholesale—but contrary to LNV’s critique, the basic

damages framework that applies in legal-malpractice cases is applicable to the

instant case.

      The district court looked to legal-malpractice claims to conceptualize

expectation interest—an essential component of any damages calculation—and

found that the success of BB&T’s litigation against the loan guarantor Duncan and


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the subsequent collectability of the loan’s payout from Duncan necessarily affected

LNV’s legitimate expectation. Despite LNV’s assertions, this approach strikes us

as neither particularly novel nor unique. Rather, it represents a commonsensical

intuition that applies across various contexts: damages reflect expectations;

expectations must account for the uncertainty of contingent inputs necessary to

produce the expected outcome; therefore, damages must be discounted by the

contingencies’ probability of occurring. Cf. In re Advanced Telecomm. Network,

Inc., 490 F.3d 1325, 1335 (11th Cir. 2007) (reasoning that “the proper approach [to

valuing an asset] would have simply discounted the expected value of the

judgment by the probability of its ever occurring”).

      The district court analogized to legal malpractice lawsuits because there, as

here, a court has to discount the face value of a potential recovery by the

probability that requisite events—winning the underlying lawsuit and then

collecting the award—will occur. Such analysis is not “appropriate only in certain

legal malpractice cases,” as LNV contends, Br. of Appellant at 29 (emphasis

added), but is instead a rational extension of malpractice lawsuits’ probabilistic

analysis. The district court therefore did not err when it sought to determine the

ways in which the probability of events essential to recovery affected the value of

LNV’s legitimate expectation, and hence its recovery.

                                       * * *


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      Having dealt with LNV’s global critiques of the district court’s

methodology, we turn to its more particularized efforts to meet the “reasonable

certainty” standard for proving its damages.

                                           B

      Unpredictability enshrouds every facet of the participation agreement’s

potential payouts, and thus sets a high hurdle for LNV in its attempt to prove

damages to a reasonable certainty. As already explained, the malpractice-suit

analogy is helpful insofar as it illustrates that, in order to determine damages, a

court must discount any likely recovery by the probability of success in both the

litigation and the post-litigation collection. The district court applied these

principles to the instant case, holding that “LNV failed to show that BB&T likely

would have obtained a favorable judgment against Duncan, and how much, if any,

of a favorable judgment it likely would have collected from him.” Without

proving the probability of the necessary inputs, LNV failed to provide any

guidance in determining an appropriate expected outcome. The district court

therefore had no benchmark against which it could assess the payout that LNV

actually received, which left the court with no choice but to award zero damages.

The same deficiency persists before us.

      On appeal, LNV principally argues that our damages analysis should begin

and end with the $34.6 million face value of the Owls Head loan. In particular,


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LNV points to Paragraph 14(b) of the participation agreement and asserts that

“[a]warding LNV damages under [that provision] is … consistent with the

principles governing benefit of the bargain damages” because “the parties

bargained for a specific price that BB&T would pay LNV in the event BB&T

wished to materially modify the loan documents without obtaining LNV’s

consent.” Br. of Appellant at 20–22. We fail to understand the argument—and to

the extent we understand it, we reject it. Paragraph 14(b) reads (with our emphasis

added) as follows:

      (b) If Participant [i.e., LNV] is unwilling to consent to any
      amendment or modification of, or waiver of compliance with, the
      Loan Agreement or any other Loan Document (where the consent of
      Participant is required), Seller [i.e., BB&T] shall have the right, but
      not the obligation, to repurchase Participant’s Participation at such
      time for a purchase price equal to (A) Participant’s Share of any and
      all unpaid advances of the Loans made by Seller to Borrower under
      the Loan Agreement, and (B) any and all unpaid interest thereon and
      fees in connection therewith in which Participant shares hereunder
      (but subject to Seller’s right of offset under Section 6(d) hereof, if
      applicable).

      There can be no serious argument that Paragraph 14(b) required BB&T to

repurchase LNV’s shares at full face value—here, 23.08% of $34.6 million. By its

plain terms, the provision gave a “right”—i.e., an option—to buy out LNV, but it

expressly did “not” impose any “obligation” on BB&T to do so. Accordingly,

contrary to LNV’s lead argument, the parties did not “bargain for a specific price




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that BB&T would pay LNV,” but rather agreed only that BB&T could buy out

LNV in order to modify the Owls Head loan.

      Since the participation agreement never mandated such a payout, LNV’s

damages model necessarily presumes (1) that BB&T would have prevailed in what

surely would have been a lengthy litigation against Duncan, the guarantor; (2) that

following its triumph in court, BB&T would have collected a hundred cents on the

dollar from Duncan; and (3) that this eventuality accurately reflected the parties’

bargain and expectations. Full face-value recovery on a defaulted loan

collateralized by recession-wrecked Florida real estate would seem to defy even

the most expansive conception of “expectation interest,” leaving LNV with a steep

uphill climb in its efforts to prove its damages to a reasonable certainty.

      Those efforts are unavailing. In its attempt to satisfy the first contingency

on its road to recovery—that is, to prove that BB&T would have prevailed in its

suit against Duncan—LNV cites to a memorandum from August 2010 in which

BB&T’s attorneys expressed optimism concerning its litigation prospects. Along

with other pleadings, LNV suggests that this document “satisfied any burden to

show that BB&T would have obtained a judgment against Duncan for the full

amount of the loan.” Br. of Appellant at 31. In the same memo, however, the

attorney wrote that “the more time this [litigation] takes the more likely a success




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by way of a paper judgment may be rendered meaningless by an inability to

collect.”

      The memo and other pleadings to which LNV cites are not only insufficient

to show that BB&T would have recovered “the full amount of the loan” for

BB&T’s breach, but, even assuming success at trial, none of LNV’s proffered

evidence convincingly demonstrates what LNV and BB&T would have ultimately

collected from Duncan. As BB&T points out, LNV does nothing to engage with

the collectability issue, except to erroneously argue that it is not required to engage

with the collectability issue. Nor does LNV persuasively demonstrate that it

reasonably expected or bargained for some payout that was reasonably certain to

exceed what it received.

      In the event of breach, the breaching party should make the party that

suffered the breach whole; that is, the breaching party should pay the non-

breaching party the difference between expectation interest and any recovery that

the non-breaching party subsequently obtains. We know the precise figure of

LNV’s post-breach recovery—$577,000 (on a $197,000 investment). What we

still do not know—because LNV has not shown us—is what LNV expected to

receive, or what the parties “bargained” for. To be sure, full face value recovery is

not LNV’s only theory of damages—on appeal, LNV argues (albeit seemingly for

the first time) that it is entitled to at least some damages either (1) because the


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proceeds of the $10 million settlement were unfairly allocated between the JLD

and Owls Head loans or (2) because the district court should have awarded relief

based on the value of the underlying collateral. But LNV’s failure to prove its

expectation dooms every damage theory to a common fate; without offering

serious evidence of its expectation interest or the benefit of its bargain with BB&T,

LNV cannot prove that the $577,000 payout it received was damagingly

inadequate. The district court therefore rightly rejected LNV’s primary and

auxiliary damages arguments. 3

                                                III

    For the foregoing reasons, we AFFIRM the district court’s judgment.




3
  Finally, LNV asserts that it is entitled to a remand on the issue of attorneys’ fees. That is
incorrect. The district court correctly held that Georgia law prohibits an award of attorneys’ fees
in the absence of other monetary or affirmative relief. See, e.g., Benchmark Builders, Inc. v.
Schultz, 711 S.E.2d 639, 640 (Ga. 2011)).
                                                15
