United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-60310
Summary Calendar
AFRICAN METHODIST EPISCOPAL CHURCH,
Plaintiff-Counter Defendant-Appellant,
versus
PLAINVILLE CATHOLIC METHODIST EPISCOPAL
CHURCH, its members and those acting in
concert with them; FRED KELLY; KELLY
COLLINS; WALTER HUDSON,
Defendants-Counter Claimants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CV-755-BN
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
The African Methodist Episcopal Church (the AME Church)
appeals the summary judgment in favor of the defendants in this
diversity action alleging ownership interests in the property and
buildings comprising a church in Plainville, Mississippi. The AME
Church has not challenged on appeal the district court’s denial of
its FED. R. CIV. P. 59(e) motion.
*
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that this opinion should not be published and is not precedent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.
No. 03-60310
-2-
The AME Church asserts that the district court erred in
granting summary judgment in favor of the defendants because the
court did not have before it verified and authenticated documents
or expert testimony. Because the AME Church did not challenge the
lack of authentication before the district court during the time
the summary judgment motion was pending, the district court did not
abuse its discretion in considering the evidence. See Eguia v.
Tompkins, 756 F.2d 1130,1136 (5th Cir. 1985).
The AME Church also contends that the district court erred in
granting summary judgment because the evidence submitted by the
defendants establish a genuine issue of material fact regarding who
in fact owns the property. The AME Church has not established that
the two deeds, which describe property in different townships of
Yazoo County, Mississippi, created a “genuine issue of material
fact.” FED. R. CIV. P. 56(c). For the first time on appeal, the
AME Church indicates that it may have a superior interest in the
property based upon its history of possession. Because the AME
Church did not file a response to the motion for summary judgment,
it cannot raise a new theory for relief. See John v. Louisiana
(Bd. of Trustees for St. Coll. and Univ.), 757 F.2d 698, 710-11
(5th Cir. 1985). The AME Church has presented no argument in
support of its assertion that the district court failed to consider
the defendants’ seizure of the AME Church’s personal and movable
property. See FED. R. APP. P. 28(a)(9). The judgment of the
No. 03-60310
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district court granting the defendants’ motion for summary judgment
is AFFIRMED.
In their appellate brief, the defendants move for sanctions on
the basis of the frivolity of the AME Church’s appeal. This motion
is DENIED. See 28 U.S.C. §§ 1912, 1927; FED. R. APP. P. 38; Edwards
v. General Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998).
AFFIRMED; MOTION FOR SANCTIONS DENIED.