     Case: 17-60081      Document: 00514121085         Page: 1    Date Filed: 08/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 17-60081                                 FILED
                                  Summary Calendar                         August 17, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
ANDREW LUCAS,

              Plaintiff–Appellant,

v.

S. LAVON EVANS, JR.; S. LAVON EVANS, JR. OPERATING COMPANY,
INCORPORATED,

              Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:16-CV-10


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Andrew Lucas brought this breach of contract action
against Defendants–Appellees S. Lavon Evans, Jr. and S. Lavon Evans, Jr.
Operating      Company,       Incorporated       (collectively,    “Evans”).        Applying




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-60081
Mississippi’s catch-all statute of limitations, the district court granted Evans’s
motion for summary judgment. For the reasons stated below, we AFFIRM.
                              I. BACKGROUND
      On January 27, 2010, Lucas and Evans executed a settlement agreement
which resolved certain “claims, issues, and disputes relating to or arising from
[the parties’] various business ventures.” The agreement imposed a number of
obligations on both parties; at issue in this case is Evans’s promise to pay Lucas
$556,500 plus interest. The agreement called for Evans to pay monthly
installments, starting at $10,000 per month and rising to $20,000 per month,
“until the unpaid principal, interest, and all loan charges have been paid in
full.” If Evans had paid all his installments in a timely manner, the last
installment would have come due in November 2012. The agreement also
called for Evans to execute a promissory note and deliver it to Lucas along with
the agreement.
      Evans failed to execute a promissory note. According to Lucas, Evans did
make three $10,000 payments to Lucas in February, March, and April 2010.
Evans has no record of those payments but states that he made a partial
payment of $5,000 in February 2012. It is undisputed that Evans made no
additional payments thereafter. Lucas contacted Evans as early as April 19,
2010, to complain about missed payments and to threaten legal action.
      Lucas sued Evans for breach of contract on January 15, 2016. Evans
moved for summary judgment, arguing that Lucas’s claim was barred by
Mississippi’s three-year statute of limitations applicable to breach of contract
actions. See Miss. Code § 15-1-49. In response, Lucas argued that Evans was
continuing to breach the settlement agreement by not making payments. The




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                                      No. 17-60081
district court granted Evans’s motion for summary judgment and dismissed
Lucas’s claim. This appeal followed.
                                   II. DISCUSSION
       “This Court ‘reviews a district court’s grant of summary judgment de
novo, applying the same standards as the district court.’” Caldwell v. KHOU-
TV, 850 F.3d 237, 241 (5th Cir. 2017) (quoting Griffin v. United Parcel Serv.,
Inc., 661 F.3d 216, 221 (5th Cir. 2011)). Summary judgment is appropriate “if
the movant shows that 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).
We “view the evidence introduced and all factual inferences from the evidence
in the light most favorable to the [nonmoving] party.” Smith v. Reg’l Transit
Auth., 827 F.3d 412, 417 (5th Cir. 2016) (quoting Hightower v. Tex. Hosp. Ass’n,
65 F.3d 443, 447 (5th Cir. 1995)).
       On appeal, Lucas raises his continuing breach argument as well as
several new arguments, including that the settlement agreement is a de facto
promissory note to which a six-year statute of limitations applies, 1 see Miss.
Code § 15-1-81, and that the statute of limitations should be tolled. 2 Because
Lucas failed to raise these arguments in response to Evans’s summary
judgment motion in the district court, we decline to address them for the first
time on appeal. See Diaz v. Kaplan Higher Educ., L.L.C., 820 F.3d 172, 176–
77 (5th Cir. 2016) (“Under our general rule, arguments not raised before the


       1 We note that Lucas did make his promissory note argument in response to Evans’s
motion to dismiss, which the district court denied on other grounds. Lucas abandoned this
argument by failing to raise it at the summary judgment stage. See Vela v. City of Houston,
276 F.3d 659, 679 (5th Cir. 2001) (holding that a defendant abandoned a defense raised in its
answer by failing to reassert it in response to a summary judgment motion).
       2 In his summary judgment response, Lucas did note that Evans committed to paying

the debt in full as soon as Evans received a large civil settlement to which he was entitled.
Lucas did not connect this fact to any tolling argument, however, and in any event his
argument on appeal relies on different facts: that Evans withheld his failure to execute the
promissory note and that he asked Lucas to delay legal action.
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                                  No. 17-60081
district court are waived and will not be considered on appeal unless the party
can demonstrate extraordinary circumstances.” (quoting Moreno v. LG Elecs.,
USA Inc., 800 F.3d 692, 697 (5th Cir. 2015)).
      The parties agree that Mississippi law controls. According to the
Mississippi Supreme Court,
      where a debt is payable in installments the general rule is that the
      statute of limitations begins to run as to each installment from the
      time when it falls due; and the creditor can recover only those
      installments falling due within the statutory period before the
      beginning of the action. The bar of the statute applies to
      installments which were due and unpaid for more than the
      statutory period.
Freeman v. Truitt, 119 So. 2d 765, 771 (Miss. 1960); see also Kersey v. Fernald,
911 So. 2d 994, 996–97 (Miss. Ct. App. 2005). The statute of limitations for
breach of contract actions in Mississippi is three years. See Miss. Code § 15-1-
49; Wallace v. Greenville Pub. Sch. Dist., 142 So. 3d 1104, 1106 (Miss. Ct. App.
2014) (“Causes of action for breach of contract are subject to the three-year
statute of limitations set forth in Mississippi Code [§] 15-1-49 . . . .”); see also
First Trust Nat’l Ass’n v. First Nat’l Bank of Commerce, 220 F.3d 331, 334 (5th
Cir. 2000) (applying three-year statute of limitations to Mississippi breach of
contract claim). Lucas brought suit in January 2016; thus, for this action not
to be time-barred, the statute of limitations must have accrued no later than
January 2013.
      It is undisputed that if Evans had timely paid all monthly installments,
his last installment would have come due in November 2012. It is also
undisputed that Lucas was aware of Evans’s failure to make monthly
installments as they came due. To escape these facts, Lucas argues that Evans
has continued to breach the settlement agreement by not making monthly
payments. See Merchs. & Marine Bank v. Douglas-Guardian Warehouse Corp.,
801 F.2d 842, 745 (5th Cir. 1986) (applying continuing breach doctrine). He
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points to a section of the settlement agreement that obligates Evans to make
payments “until the unpaid principal, interest, and all loan charges have been
paid in full.” As the district court held, applying the continuing breach doctrine
based on this section of the settlement agreement would effectively waive the
statute of limitations, which Mississippi law expressly prohibits. Miss. Code §
15-1-5. Moreover, Lucas’s continuing breach argument contradicts the
Mississippi Supreme Court’s holding in Freeman which defined the accrual
date for unpaid installments as the date “when [each installment] falls due.”
119 So. 2d at 771. Accordingly, the district court did not err in holding that
Lucas’s breach of contract claim is time-barred.
                              III. CONCLUSION
      For the foregoing reasons, the district court’s grant of summary
judgment against Lucas is AFFIRMED.




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