                                                                     [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                         ------------------------------------------- U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 07-14543                          May 28, 2008
                                Non-Argument Calendar                   THOMAS K. KAHN
                        --------------------------------------------         CLERK

                      D.C. Docket No. 05-00199-CV-1-BAE

THOMAS K. McCAUGHEY,

                                                         Plaintiff-Appellant,

                                          versus

BANK OF AMERICA, N.A.,

                                                         Defendant-Appellee.


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                   Appeal from the United States District Court
                        for the Southern District of Georgia
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                                    (May 28, 2008)

Before EDMONDSON, Chief Judge, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Thomas K. McCaughey appeals the grant of summary

judgment in favor of Defendant-Appellee Bank of America, N.A. (“Bank”), in his
suit for breach of contract and equitable relief.1 No reversible error has been

shown; we affirm.

       McCaughey’s suit arises out of a failed commercial renovation project. In

1983, McCaughey and Joe Murphy formed Boxwood Associates (“Boxwood”) -- a

limited partnership -- to renovate a building in Augusta, Georgia. In 1984, as part

of the financing for this project, the Bank issued an irrevocable letter of credit --

guaranteed by both McCaughey and Murphy -- to secure a $5.4 million bond issue

sponsored by Boxwood. Boxwood agreed to reimburse the Bank for draws under

the letter of credit. In April 1988, the Bank extended the letter of credit on the

bond issue with only Murphy as guarantor; the Bank released McCaughey from

personal liability on the letter.

       The renovation project ultimately was unsuccessful. In October 1988,

Murphy sued McCaughey in state court for various monies owed to Murphy as

part of the Boxwood partnership including, among other things, obligations paid

by Murphy on a 1986 Citibank letter of credit to secure a second bond issue. In

1989, while Murphy’s litigation was pending, the Bank did not renew its letter of

credit; and later, Boxwood became in default for its draws under the letter. The



   1
    McCaughey originally filed his suit in Georgia state court, but the Bank removed it to federal
court based on diversity of jurisdiction. See 28 U.S.C. §§ 1332(a), 1446.

                                                2
Bank entered into settlement negotiations with Murphy for Boxwood’s failure to

reimburse it for the draws; and as part of the eventual settlement agreement,

Murphy -- who had no other assets to offer -- assigned the Bank half of the

proceeds of any recovery from his lawsuit against McCaughey. After protracted

litigation, a jury awarded Murphy $487,500 for monies McCaughey owed him for

valid partnership obligations on the Citibank letter of credit. As per the settlement

agreement, Murphy gave the Bank half of the proceeds from the McCaughey

litigation.

       In his complaint, McCaughey alleged that the Bank breached the 1988

release agreement with him and held him indirectly liable for his personal

guaranty on the letter of credit by collecting half of Murphy’s recovery against

him. McCaughey also raised claims of money had and received and unjust

enrichment, arguing that he was entitled, as a matter of equity, to the proceeds

Murphy paid to the Bank as part of the settlement agreement.2

       The district court determined that McCaughey could not pursue his claims

for equitable relief because an express contract -- the 1988 release agreement --

governed the relationship between him and the Bank. The district court also


  2
    In addition, McCaughey raised a conspiracy claim; on appeal, he makes no arguments about this
claim, and, thus, it is abandoned. See Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir.
2001) (explaining that issues not briefed on appeal are abandoned).

                                               3
determined that the Bank was entitled to summary judgment on McCaughey’s

breach of contract claim because the money the Bank received as a result of the

McCaughey litigation was for Boxwood’s indebtedness to Citibank, monies

unrelated to the Bank’s letter of credit and release agreement.

      On appeal, McCaughey argues that the district court erred in granting

summary judgment on his breach of contract claim because, even though Murphy

recovered from him on obligations to Citibank, the funds went back to the Bank

for losses incurred in guaranteeing the Boxwood project, in violation of the release

agreement. We review a district court’s grant of summary judgment de novo; and

we view the evidence and all reasonable factual inferences in the light most

favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367

(11th Cir. 1999).

      Here, the district court correctly granted summary judgment to the Bank on

the breach of contract claim. The 1988 agreement extending the Bank’s letter of

credit and releasing McCaughey provided that McCaughey, as the non-consenting

party, would “have no personal liability to the Bank arising out of such additional

extension of the Letter of Credit by the Bank . . . (specifically, but without

limitation, no liability to the Bank for reimbursement of any draw, legal fees or

commissions, under or in connection with the Letter of Credit as so extended), and

                                           4
any liability of the non-consenting Party to the Bank arising out of such additional

extension of the Letter of Credit shall be limited to the assets of Boxwood

Associates.” This provision clearly released McCaughey from personal liability

on the letter of credit; thus, the Bank could not seek to hold him directly liable for

indebtedness on the letter. But the release did not prevent the Bank from

obtaining from Murphy -- still its debtor -- the proceeds from Murphy’s lawsuit

against McCaughey as part of Murphy’s satisfaction of Boxwood’s debts with the

Bank; Murphy still was obligated on the letter. In addition, to the extent

McCaughey was held liable for Boxwood’s debts through the Murphy litigation,

this liability was for Boxwood’s indebtedness to Citibank, not the Bank; the

Citibank debt was beyond the scope of the release agreement.

      McCaughey next argues that, if the release did not constitute a contract, he

should have been allowed to pursue his equitable claims of unjust enrichment and

money had and received. McCaughey’s argument has no merit. Here, the district

court determined, and McCaughey admitted, that the 1988 release agreement

governed McCaughey’s relationship with the Bank. Because an express contract

was present, McCaughey could not pursue equitable remedies. See CS-Lakeview

at Gwinnett, Inc. v. Simon Prop. Group, 642 S.E.2d 393, 398 (Ga. Ct. App. 2007)

(explaining that a claim for unjust enrichment is not available when there is an

                                           5
express contract between the parties); Nat’l City Bank of Rome v. Busbin, 332

S.E.2d 678, 683 (Ga. Ct. App. 1985) (action seeking recovery for money had and

received and action for unjust enrichment are not separate causes of action; former

is merely one form of action to recover damages based on unjust enrichment).

      McCaughey also argues that the district court erred in denying his post-

judgment motion to amend his complaint to specify that he also was released from

liability on the Bank’s letter of credit by a 1989 document from the Bank’s

settlement negotiations with Murphy. He concedes that he made this argument for

the first time in his reply to the Bank’s summary judgment motion. We review a

district court’s decision about amending a complaint for an abuse of discretion.

Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004). Here, the

court did not abuse its discretion. We first note that a party cannot amend his

complaint to add a new claim through argument in a brief opposing summary

judgment. Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314-15 (11th

Cir. 2004). But McCaughey did not seek to amend his complaint until after the

court already had granted summary judgment in favor of the Bank; he had ample

time to seek to amend his complaint before the court dismissed his case. See

Fed.R.Civ.P. 15(a) (after a responsive pleading has been served, a party may




                                         6
amend his complaint only upon leave of court and the court may grant leave to

amend freely when “justice so requires”).3

       AFFIRMED.




  3
  Even if this 1989 document bore on this case, our analysis would not change because, as noted,
McCaughey was held liable for partnership obligations to Citibank, not the Bank.

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