                Case: 15-15584       Date Filed: 10/06/2017      Page: 1 of 4




                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-15584
                              ________________________

                         D.C. Docket No. 1:15-cv-00335-LMM



NOVUM STRUCTURES, LLC,

                                                 Plaintiff-Counter Defendant - Appellant,

                                            versus

CHOATE CONSTRUCTION COMPANY, INC.,

                                                 Defendant-Counter Claimant - Appellee.

                              ________________________

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

                                     (October 6, 2017)

Before JULIE CARNES and JILL PRYOR, Circuit Judges, and CONWAY, *
District Judge.


*
   Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.
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PER CURIAM:

       Novum Structures, LLC, appeals the district court’s denial of its summary

judgment motion seeking to bar an indemnity claim against it based on res

judicata. Choate Construction Company, the general contractor for the renovation

of an athletic coliseum at the University of Georgia, subcontracted to Novum the

fabrication and installation of large specialty panes of tempered glass. The

subcontract required Novum to defend and indemnify Choate against all claims for

damages concerning the panes; it also required Novum to repair and replace any

broken glass panes due to a “latent defect.”

       When five panes broke after installation, the university asserted its claims

against Choate for the broken panes, and Choate in turn sought indemnity under

the subcontract from Novum in an arbitration proceeding. After the arbitration

hearing concluded 2, Choate learned that a sixth glass pane had broken. The

arbitrator awarded $673,166 in favor of Choate, and Novum paid the award.

Subsequently, a seventh glass pane broke. Choate demanded damages from

Novum for the cost to repair the sixth and seventh broken panes.

       Novum filed a declaratory judgment action in the Superior Court of Fulton

County, Georgia, alleging the arbitrator’s award on the five broken panes had

2
 The sixth glass pane broke three weeks after evidence in the arbitration closed, and a few days
before the arbitrator issued the final award. The arbitrator denied Choate’s request to reopen the
arbitration to consider evidence related to the sixth break.


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resolved all claims against Novum for broken panes based on res judicata. Choate

removed the action to federal district court and counterclaimed for a declaratory

judgment that Novum was required to defend and indemnify Choate for the defects

in the broken panes based on the prior arbitration award. Choate also alleged a

claim for breach of the subcontract for defective glass and for failure to repair and

replace the sixth and seventh panes. Both parties moved for summary judgment on

their respective claims. The district court denied Novum’s summary judgment

motion based on res judicata, but granted to Choate summary judgment on both its

indemnity claim and on its claim for breach of the subcontract, finding Novum had

supplied defective glass and had failed to repair the defective work in the sixth and

seventh broken panes. The district court specifically noted that Novum had failed

to oppose Choate’s summary judgment motion on its counterclaim for breach of

the subcontract and had admitted that it had failed to provide Choate with any

defense or indemnification, had provided defective glass, and had failed to repair

and replace the sixth and seventh breaks.

      Although Novum appealed the denial of its own summary judgment motion,

it failed to appeal the district court’s grant of summary judgment to Choate on its

separate counterclaim for breach of contract for Novum’s provision of defective

materials and failure to repair the broken panes. “To obtain reversal of a district

court judgment that is based on multiple, independent grounds, an appellant must



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convince us that every stated ground for the judgment against [it] is incorrect.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

       Novum limited the analysis in its initial appeal brief3 exclusively to whether

res judicata barred Choate’s claim for defense and indemnification, and did not

appeal the district court’s finding that Novum had breached the subcontract’s

separate clause requiring Novum to repair the defective materials in the sixth and

seventh breaks. An appellant who fails to challenge one of the grounds on which

the district court based its judgment is deemed to have abandoned any challenge of

that ground, and the judgment is due to be affirmed. Little v. T–Mobile USA, Inc.,

691 F.3d 1302, 1306 (11th Cir. 2012).

       AFFIRMED.




3
  Novum argued for the first time in its reply brief that the arbitration award had preclusive effect
for “every type of claim” Choate could have raised. We do not address arguments raised for the
first time in a reply brief or in a perfunctory manner without support. See Sapuppo, 739 F.3d at
680–82.


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