Jesco Const Corp v. NationsBank Corp

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 12, 2003

Charles R. Fulbruge III
Clerk
No. 00-31195

JESCO CONSTRUCTION CORPORATION,

Plaintiff - Appellee,

VERSUS

NATIONSBANK CORPORATION, ET AL.,

Defendants,

AMERICAN INTERNATIONAL SPECIALTY LINES
INSURANCE COMPANY; CONTINENTAL CASUALTY COMPANY;
UNDERWRITERS AT LLOYDS OF LONDON,

Defendants - Appellants

VERSUS

BANK OF AMERICA COMMERCIAL FINANCE CORPORATION,
formerly known as NationsCredit Commercial Corporation,

Cross Claimant - Appellant.

Appeals from the United States District Court
For the Eastern District of Louisiana
(98-CV-1657)
ON PETITION FOR REHEARING
Opinion 321 F.3d 501
(5th Cir. February 5, 2003)
Before JONES, and DeMOSS, Circuit Judges, and FELDMAN1, District
Judge.

PER CURIAM:2

Before this Court is a petition for rehearing filed by Jesco

Construction Company (“Jesco”). Jesco asks that this Court amend

its previous opinion with respect to that portion of the opinion

which affirmed the district court’s grant of summary judgment.

The district court originally granted summary judgment against

Jesco on its breach of contract claims because it found that the

writings involved did not meet the requirements of the Louisiana

Credit Agreement Statute and Jesco was therefore asserting rights

under an oral agreement. Those requirements are that “the

agreement is in writing, expresses consideration, sets forth the

relevant terms and conditions, and is signed by the creditor and

the debtor.” La. Rev. Stat. § 6:1122. There were only two

documents of significance in the underlying case. One was a faxed

letter, the first paragraph of which read:

Based upon our preliminary review of the information you
have submitted to us, we are pleased to submit this
proposal along the parameters outlined below. Please
understand that after completion of our due diligence,
NationsCredit may require alternative parameters, or may
decline to offer you financing. The following is not a

1
District Judge of the Eastern District of Louisiana,
sitting by designation.
2
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that this opinion should not be published and is not precedent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.

2
 commitment but only an expression of our interest.

The signatures of both parties appeared at the end of this

document. The other document was a facsimile sent from Bank of

America’s agent Kellee Cappas to Jesco’s president, John E.

Shavers, and it contained the following four handwritten sentences:

“We can close this deal in 3 wks if we receive a total check of

$35,000 tomorrow. The additional $15,000 will commence the legal

documentation process. Call me or Kim Metzner with any questions.”

This document had no signatures.

In analyzing whether these documents met the requirements of

the Louisiana Credit Agreement Statute, the district court stated:

In the case at hand, regardless of which version of
the events . . . is accepted as true, Jesco’s claim for
damages as a result of [Bank of America’s] purported
breach of contract cannot stand. Even if the facsimile
cover sheet was sent separate from the letter of interest
which was faxed by Cappas to Shavers, neither document
satisfies the requirements of the Louisiana Credit
Agreement Statute. See La. Rev. Stat. § 6:1122.
The “cover sheet” fails to satisfy said
requirements, among other reasons, because it bears no
signatures. The letter of interest is not a valid credit
agreement because it fails to set forth the relevant
terms and conditions of any agreement to lend money or
extend credit. As quoted above, said letter clearly
provide that [Bank of America] “may require alternative
parameters, or may decline to offer [Jesco] financing.”
The letter “is not a commitment but only an expression of
[Bank of America’s] interest.” Even if taken together,
as Jesco (paradoxically) argues that they must, the
letter and cover sheet do not satisfy the requirements of
the Louisiana Credit Agreement Statute.

Jesco Constr. Corp. v. Nationsbank Corp., No. 98-1657 (E.D. La.

filed July 18, 2000) (internal citations and footnotes omitted).

3
The district court went on to also reject Jesco’s argument that

Bank of America was not a financial institution for the purposes of

the Louisiana Credit Agreement Statute. We agree with the district

court’s analysis that these writings failed to meet the

requirements of the Louisiana Credit Agreement Statute and that

Bank of America was a lending institution entitled to the

protection of this Statute.

What was not clear to the district court, however, was whether

or not the failure to meet the requirements of the Louisiana Credit

Agreement Statute would also preclude the other claims asserted by

Jesco. In its original order, the district court made an “Erie

guess” to find that these other claims were not precluded and

denied Bank of America’s motion for summary judgment on those

claims. A single order was entered on July 18, 2000, which both

granted summary judgment to Bank of America on Jesco’s breach of

contract claims and denied summary judgment on Jesco’s other

claims.

On September 1, 2000, the district court amended its July 18,

2000 order so as to include therein the language required by

Section 1292(a), that the issue of whether or not the Louisiana

Credit Agreement Statute precludes all non-contract causes of

action involved a controlling question of law as to which there is

substantial ground for difference of opinion; and certified the

issue for immediate appeal. In doing so, the district court stated

4
that “[a]ny such application for appeal shall be limited to the

question of whether the Louisiana Credit Agreement Statute

precludes all actions for damages arising from oral credit

agreements regardless of the legal theory of recovery asserted.”

On October 10, 2000, a panel of this Court granted leave to

file an interlocutory appeal to American International Specialty

Lines Insurance Company, Continental Casualty Company, and

Underwriters at Lloyd’s of London, but denied leave to Bank of

America. However, on November 21, 2000, in a rehearing the same

panel granted Bank of America leave to file an appeal.

On appeal, we certified the question of whether the Louisiana

Credit Agreement Statute precludes all causes of action to the

Louisiana Supreme Court and that Court answered in the

affirmative. We then entered an order affirming the district

court’s grant of summary judgment as to the breach of contract

claims and reversing and remanding as to the denial of summary

judgment on the other causes of action because the Louisiana Credit

Agreement Statute precludes all causes of action, not just breach

of contract actions.

Jesco now asks us to re-word our opinion so that Jesco may

appeal the district court’s grant of summary judgment as to the

breach of contract claims because Jesco maintains that the writings

in question did meet the requirements of the Louisiana Credit

Agreement Statute. Jesco claims that because the district court

5
specifically limited the issue on appeal and also because it did so

in a separate order, this court lacks jurisdiction to affirm that

portion of the district court’s ruling granting summary judgment.

Jesco also specifically stated in their original appellate brief

that, “The prospect of an appeal by Jesco of the district court’s

dismissal of the contract action, when it granted partial summary

judgment to the defendants, lingers.”3 Jesco claims, therefore,

that this Court is without jurisdiction to rule on the propriety of

the district court’s granting of summary judgment. However, as

Bank of America points out, this Court is not limited by the issues

as framed by the parties or even the district court. The Supreme

Court has stated:

As the text of § 1292(b) indicates, appellate
jurisdiction applies to the order certified to the court
of appeals, and is not tied to the particular question
formulated by the district court. The court of appeals
may not reach beyond the certified order to address other
orders made in the case. United States v. Stanley, 483
U.S. 669, 677 (1987). But the appellate court may
address any issue fairly included within the certified
order because “it is the order that is appealable, and
not the controlling question identified by the district
court.” 9 J. Moore & B. Ward, Moore’s Federal Practice ¶
110.25[1], p. 300 (2d ed.1995). See also 16 C. Wright, A.
Miller, E. Cooper, & E. Gressman, Federal Practice and
Procedure § 3929, pp. 144-145 (1977) (“[T]he court of
appeals may review the entire order, either to consider
a question different than the one certified as

3
Jesco, however, seems to acknowledge that it was a single
order that was appealed in its brief by stating that “the court
certified part of its order so as to authorize an interlocutory
appeal of its denial of defendants’ motion for summary judgment
on Jesco’s separate and independent actions.” Appellee’s Brief
at 3.

6
 controlling or to decide the case despite the lack of any
identified controlling question.”); Note, Interlocutory
Appeals in the Federal Courts Under 28 U.S.C. § 1292(b),
88 Harv. L. Rev. 607, 628-629 (1975) (“scope of review
[includes] all issues material to the order in
question”). (Emphasis added)

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996).

Therefore, so long as an issue is fairly included within the

certified order, we have jurisdiction to decide that issue.

In the present case, the language which the district court

used in its September 1, 2000 order certifying the question

actually amended its previous July 18th order. Therefore, under

Yamaha the entire previous order is subject to our jurisdiction

because it is identified as the pertinent order in the order

approving an appeal.4 Consequently, we have jurisdiction to decide

both the district court’s grant of summary judgment and its denial

of summary judgment because both actions are clearly included

within the certified order. In both, this Court was also required

to determine whether the district court correctly determined that

the writings failed to meet the requirements of the Louisiana

Credit Agreement Statute. The issues are all inextricably

intertwined with each other. We certified these same issues to the

Louisiana Supreme Court and that Court:

1) accepted the determination of the U.S. District

4
The district court stated that “an immediate appeal from
the order may materially advance the ultimate determination of
the litigation.” The words “the order” is a reference to the
July 18, 2000 order which was being amended.

7
 Court that the writings in this case did not
satisfy the requirement of the Louisiana Statute
and that any agreement could only be an oral
agreement;

2) determined that Bank of America “qualifies as any
other type of creditor that extends credit” as
defined in the Louisiana Statute; and

3) that the Louisiana Statute precludes “all actions
for damages arising from oral credit agreements,
regardless of the legal theory of recovery
asserted”.

In conclusion, we hold that under Yamaha’s interpretation of

Section 1292(a), this Court has jurisdiction to review both the

denial of summary judgment and the granting of summary judgment as

contained in the July 18th order. Furthermore, utilizing the

answers given us by the Louisiana Supreme Court we conclude that

the district court did not err in granting summary judgment on the

breach of contract claim but that its “Erie guess” was wrong as to

the other causes of action and should be reversed. We therefore

deny Jesco’s petition for rehearing.

PETITION DENIED.

8