Doug's Coin & Jewelry, Inc., et al. v. America's Value Channel, Inc., et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13013
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-01095-MHH
DOUG’S COIN & JEWELRY, INC.,
SOUTHERN COIN & COLLECTIBLES, INC.,
Plaintiffs-Appellants,
versus
AMERICAS VALUE CHANNEL, INC.,
d.b.a. AVC,
Defendant-Appellee,
JOHN G. BINNS, JR.,
Defendant - Cross Defendant -
Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(November 20, 2015)
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Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Doug’s Coin & Jewelry, Inc., and Southern Coin & Collectibles, Inc.
(collectively “the coin companies”) appeal the summary judgment in favor of
Americas Value Channel, Inc. John G. Binns Jr. marketed valuable coins on
Americas Value Channel in February 2009, but he failed to pay the coin companies
for the coins. The coin companies then sued him and Americas Value Channel.
The coin companies obtained a default judgment against Binns for breach of
contract and conversion and sought to hold Americas Value Channel derivatively
liable on the ground that Binns acted with apparent authority as its agent. The
district court ruled that Binns was not an agent of Americas Value Channel. We
affirm.
The coin companies argue that the district court failed to consider whether
Binns had implied authority to act on behalf of Americas Value Channel, but we
will not consider an argument not presented to the district court. We have
“repeatedly held that an issue not raised in the district court and raised for the first
time in an appeal will not be considered by this court.” Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (internal quotation marks and
citation omitted). The coin companies contend that their “Brief in Opposition to
[the] Motion for Summary Judgment preserves the arguments . . . regarding
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implied agency,” but their brief cited decisions about apparent authority and
argued that “there is a question of fact whether Binns had apparent authority to
bind AVC to the contract at issue in this matter.” Their brief did not mention
implied authority, which “differs from apparent authority in that it is authority
which the principal intended that the agent should have.” McLemore v. Hyundai
Motor Mfg. Ala., LLC, 7 So. 3d 318, 328 (Ala. 2008) (quoting Patterson v. Page
Aircraft Maint., Inc., 283 So. 2d 433, 436 (Ala. Civ. App. 1973)). And the coin
companies failed to object to the description of their argument as “assert[ing] . . .
[that] AVC clothed Binns with apparent authority” in a magistrate judge’s report
and recommendation that the district court adopted. We will not fault the district
court for failing to consider an argument not presented to it.
The district court did not err when it ruled that Binns did not act with the
apparent authority of Americas Value Channel. Under Alabama law, which the
parties agree applies, “before there can be apparent authority that implies an
agency relationship, the ‘authority’ must be apparent to the complaining party and
that party must have relied on the appearance of authority.” Brown v. St. Vincent’s
Hosp., 899 So. 2d 227, 238 (Ala. 2004) (quoting Watson v. Auto-Owners Ins. Co.,
599 So. 2d 1133, 1136 (Ala. 1992)). The coin companies shared a business
relationship with Binns that predated his appearance on Americas Value Channel.
He contacted the coin companies; his business card contained his and his brother’s
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contact information; he stated that he would sell the coins on television programs;
and he paid the coin companies with a personal check. Binns operated in the same
manner during several transactions with the coin companies in the fall of 2008 and
during a transaction in December 2009 in which Doug’s Coin delivered coins to
the office of Americans Value Channel. In February 2009, Binns also acted
consistent with his past business practices when he arranged for Doug’s Coin to
deliver the products of both coin companies to Americas Value Channel.
The owner of Doug’s Coin was not “misled by . . . appearances” or given
“reasonable cause to believe,” see id. at 241 (quoting Union Oil of Cal. v. Crane,
258 So. 2d 882, 887 (Ala. 1972)), by Americas Value Channel that Binns was its
agent. The owner’s testimony and affidavit established that he relinquished the
coins to Binns at the television studio and that he watched a broadcast and
observed transactions in the call center without speaking to an employee of
Americas Value Channel. The owners of both coin companies averred that they
thought Americas Value Channel “would be standing behind” the transactions in
February 2009 because it aired Binns’s programs; displayed its logo, its toll-free
number, and information when displaying Binns’s merchandise; and processed
orders and payments for Binns. But their “mere belief without cause . . . [was] not
enough,” to establish an agency by apparent authority. Id. (quoting Union Oil, 258
So. 2d at 887).
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We AFFIRM the summary judgment in favor of Americas Value Channel.
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