Geaux Live Digital, L.L.C. v. Taylor and Ross Entrtnmt, LLC, et al

Filing

UNPUBLISHED OPINION FILED. [14-30396 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 02/02/2015 [14-30396]

Case: 14-30396

Document: 00512898025

Page: 1

Date Filed: 01/12/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30396
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2015

GEAUX LIVE DIGITAL, L.L.C.,
Plaintiff - Appellee

Lyle W. Cayce
Clerk

v.
TAYLOR AND ROSS ENTERTAINMENT, L.L.C.; GENO TAYLOR; RICKY
ROSS,
Defendants - Appellants

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CV-601
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The judgment of the district court is affirmed.
Pursuant to an overarching “Loan Agreement,” Plaintiff Geaux Live
Digital, L.L.C., loaned Defendant Taylor and Ross Entertainment, L.L.C.,
$500,000 in installments of $200,000, $200,000, and $100,000 and received
three promissory notes in return. Defendants Geno Taylor and Ricky Ross
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30396
personally guaranteed the debt. Because the promissory notes have come due,
and there has been no payment made on the notes, Plaintiff sued for breach of
contract. After a bench trial, the district court ruled in favor of the Plaintiff
and against the Defendants.
Because Defendants say the Plaintiff was late in making its final,
$100,000 payment, Plaintiff breached the Loan Agreement and made
performance impossible, thus discharging their obligation to repay the debt.
However, at trial, Defendants presented no evidence to support this argument.
Indeed, on appeal, Defendants do not cite to record evidence when claiming
Plaintiff’s alleged breach rendered them unable “to repay sums which might
otherwise be due under the Loan Agreement.” Instead, Defendants cite their
own Answer and Counterclaim. This is not evidence, and Defendants have not
shown that the district court clearly erred in rejecting their affirmative
defenses.
In addition to asserting Plaintiff’s alleged contractual breach as an
affirmative defense, Defendants counterclaimed. The district court dismissed
all of Defendants’ counterclaims after finding they failed to “present[ ]
sufficient evidence or law” to carry their burden. Defendants appealed this
ruling as well but have not adequately briefed the issue. See Fed. R. App. P.
28(a)(8)(A) (appellants must state their “contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies”); see also Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653
(5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal are
waived.”). Defendants do not discuss their counterclaims separate from their
affirmative defenses, and they cite no cases germane to the issue of whether
the trial court erred in dismissing the counterclaims. Because Defendants cite
no case law in support of their argument that Plaintiff is liable for breaching
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the Loan Agreement, the argument is waived. 1 See Kohler v. Englade, 470
F.3d 1104, 1114 (5th Cir. 2006).
Finally, Defendants argue that the district court erred by “granting
additional remedies against Rick Ross and Geno Taylor, individually.”
However, the judgment conforms to the parties’ “Security Agreement” and
implicates only property that was already “granted to [Plaintiff] as security,”
or “given by [Defendants] to secure their debt owed to [Plaintiff],” or “given as
collateral by [Defendants] to satisfy th[e] judgment,” or “granted to [Plaintiff]
by [Defendants] as collateral for the indebtedness.”

Further, as court-

appointed receiver—an appointment provided for in the Security Agreement—
Plaintiff has rights to exercise only powers “granted . . . in the Loan Agreement,
Security Agreement, Promissory Notes, Personal Guarantee, and substantive
laws of the State of Louisiana.” By its terms, the judgment does not grant
relief beyond that set forth in the Security Agreement, and the district court
did not err.
AFFIRMED.

Even at this point, after a bench trial and on appeal, Defendants’ theory of breach is
unclear. At trial, counsel for Defendants noted that their Answer and Counterclaim did not
allege bad faith breach on the part of Plaintiff and said it would be “disingenuous” to argue
bad faith breach. Nonetheless, on appeal, Defendants contend they “asserted in their answer
and counterclaim,” among other things, “bad faith performance (or non-performance),” and
they argue such “bad faith and prior material breach of the Loan Agreement” caused
Defendants’ inability to pay the promissory notes. Consistent with counsel’s original
representations in the district court, Defendants’ Answer and Counterclaim does not allege
bad faith breach on the part of Plaintiff. An argument that would be “disingenuous” before
the trial court is equally inappropriate on appeal. In any event, arguments not made before
the trial court cannot be raised for the first time on appeal. See Lofton v. McNeil Consumer
& Specialty Pharm., 672 F.3d 372, 380-81 (5th Cir. 2012).
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