                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            Nov. 13, 2009
                             No. 08-16123
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                   D.C. Docket No. 06-01212 CV-HTW-1

INTERCEPT, INC.,

                                               Plaintiff-Counter-
                                               Defendant -Appellee,

                                  versus

LUIS ENRIQUE FERNANDO MOLINA GALEANA,

                                               Defendant-Counter-
                                               Claimant-Appellant.

                       ________________________

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

                           (November 13, 2009)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
      Luis Enrique Fernando Molina Galeana signed an agreement to guarantee the

obligations of Media Billing LLC related to its purchase of Internet Billing Company

from Intercept, Inc. After Media Billing defaulted on its obligations, Intercept sued

Molina to enforce the guaranty. Molina’s answer asserted an affirmative defense that

Intercept perpetrated a fraud in the inducement of the purchase agreement and the

guaranty. Molina also asserted two counterclaims; one sought rescission of the

purchase agreement, and one sought a judgment declaring that the guaranty

obligations were void. The district court granted summary judgment in favor of

Intercept, and Molina appeals.

      Georgia law permits a party alleging fraud in the inducement to either affirm

the contract and sue for damages or promptly rescind the contract and sue in tort to

recover damages for fraud. Ainsworth v. Perreault, 563 S.E.2d 135, 137 (Ga. App.

2002) (citations omitted). The district court found that Molina chose the second

option; it construed his answer and counterclaims as attempting to rescind the

guaranty. It held that the rescission counterclaim was barred by laches. Because

Molina did not promptly attempt to rescind the guaranty, we agree. The district court

also held that the counterclaim seeking to void the guaranty was duplicative of the

counterclaim for rescission. Molina did not argue any practical distinction between

his counterclaim to rescind the guaranty and his counterclaim to declare the guaranty

                                         2
void.1       So, we conclude the court did not err in concluding that the second

counterclaim was duplicative of the first.

         AFFIRMED.




         1
        Molina contends that his counterclaim for declaratory relief is based on a failure of
consideration. After reviewing the record, however, we conclude Molina raised the issue of
consideration for the first time on appeal. Therefore, we do not consider Molina’s failure of
consideration argument.

                                             3
