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

                                                FILED
                                                                    November 16, 2009

                                   No. 09-20197                    Charles R. Fulbruge III
                                 Summary Calendar                          Clerk



FEDERAL LAND BANK ASS’N OF SOUTH ALABAMA, FLCA,

                                               Plaintiff-Third Party Defendant–
                                               Appellee
v.

H&H WORLDWIDE FINANCIAL SERVICE, INC.,

                                               Defendant

and

STEVEN P. MOCK,

                                               Third Party Defendant–Appellant




                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:07-cv-02832


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*




      *
        Under Fifth Circuit Rule 47.5, we have determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.
                                 No. 09-20197

      The district court found Steven P. Mock liable for civil conspiracy against
the Federal Land Bank Association of South Alabama, FLCA (the “Bank”). On
appeal, Mock argues that the district court abused its discretion in finding him
liable because the final pretrial order sought no relief against him. Mock failed
to raise this argument in the district court, and he is barred from doing so now.
We affirm the district court’s judgment.
                             I. BACKGROUND
      The Bank lent $68.5 million (the “Loan”) to H&H Worldwide Financial
Service, Inc. (“H&H”). Mock was an attorney and a senior officer for H&H. The
Bank sued H&H and related defendants (collectively the “H&H Defendants”)
and John R. Crouch for wrongdoing in connection with the loan. The Bank
alleged that the H&H Defendants conspired with Crouch, an officer of the Bank,
to commit RICO violations, securities fraud, common law fraud, and other
wrongful acts in connection with the Loan.
      The H&H Defendants answered and counterclaimed, alleging that certain
loan documents were incomplete at execution and therefore unenforceable. In
response, the Bank filed a third-party complaint against Mock, claiming that
Mock represented in writing to the Bank that the loan documents were binding
and enforceable. The Bank contended that if the loan documents were not fully
enforceable, then Mock was liable to the bank for negligent misrepresentation,
common-law fraud, and fraudulent inducement. The third-party complaint also
contained a claim against Mock for civil conspiracy, which was not contingent
on the H&H Defendants’ success on their counterclaim.          In a subsequent
amendment, the Bank dropped the fraudulent inducement claim but maintained
the negligent misrepresentation, common-law fraud, and civil conspiracy claims.
      The district court dismissed the H&H Defendants’ counterclaims,
rendering moot the Bank’s third-party negligent misrepresentation and fraud



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claims against Mock. The only claim remaining against Mock was the civil
conspiracy claim.
      The parties filed their proposed pretrial order. On appeal, Mock argues
that the pretrial order did not even mention him. This is not accurate. The
pretrial order listed Mock as appearing pro se, and the pretrial order’s statement
of the case described Mock as an attorney who represented H&H in connection
with the loan closings. Also in the statement of the case, the Bank asserted that
in making the loans it relied on fraudulent statements made by the defendants,
that the proceeds of the loans were used for unlawful purposes, and that some
or all of the defendants compensated Crouch for his participation.
      Immediately before trial, the district court asked the parties (including
Mock) in open court if they had looked at the pretrial order. They indicated that
they had. The district court confirmed that it was a joint order and instructed
the parties to sign it. The district court also confirmed that although the Bank
had dismissed its negligent misrepresentation, common-law fraud, and
fraudulent inducement claims against Mock, the Bank still had a civil conspiracy
claim against Mock. Indeed, the district court noted that the civil conspiracy
claim was the only reason for Mock’s ongoing involvement in the case.
      In his initial appeal brief, Mock argues that the district court abused its
discretion in finding him liable because the final pretrial order sought no relief
against him. In its responsive brief, the Bank argues that Mock is barred from
raising this argument in the appellate court because he failed to raise it in the
district court. Mock did not file a reply brief.
                                 II. ANALYSIS
      We have jurisdiction over the district court’s final judgment under 28
U.S.C. § 1291.
      Mock argues that immediately before trial, he stated in open court that the
pretrial order limited the Bank’s relief against him. The record does not support

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this assertion. The transcript of court proceedings immediately before trial does
not show that Mock made any statements at all, much less that he argued that
the pretrial order limited the Bank’s relief. Further, the docket shows a flurry
of activity in the days leading up to the trial, but nothing indicates that Mock or
anyone else filed any documents relating to this issue.
      When a party “fail[s] to present [an] argument to the district court,” the
party usually is “barred from making this argument on appeal.”              Doe v.
MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008). “To avoid being waived, an
argument ‘must be raised to such a degree that the trial court may rule on it.’”
Brown v. Ames, 201 F.3d 654, 663 (5th Cir. 2000) (quoting In re Fairchild
Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993)); see also Stokes v. Emerson
Electric Co., 217 F.3d 353, 358 n.19 (5th Cir. 2000) (“Arguments not raised in the
district court cannot be asserted for the first time on appeal.”). Because Mock
failed to raise this argument in the district court, he is barred from raising it on
appeal.
      Moreover, Mock would not prevail even if he were not barred from raising
this argument. On appeal, we review a trial court’s interpretation of a pretrial
order for abuse of discretion. Hall v. State Farm Fire & Cas. Co., 937 F.2d 210,
212-13 (5th Cir. 1991). Generally, we will not reverse unless “[a]n issue or
theory [is] not even implicitly included in the pretrial order.” Morris v. Homco
Int’l, Inc., 853 F.2d 337, 342 (5th Cir. 1988). Here, it is true that the pretrial
order did not explicitly state that the Bank was bringing a claim for civil
conspiracy against Mock.      But the pretrial order stated that Mock was a
defendant and described his role in the conspiracy. Further, Mock knew that the
Bank had brought a conspiracy claim against him because that claim was in
both the counterclaim and the amended counterclaim, and the district court
restated it at the beginning of trial. Accordingly, the district court did not abuse
its discretion by finding Mock liable for civil conspiracy.

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We affirm the district court’s judgment.




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