IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60303

ASSURED GUARANTY CORPORATION, Successor in interest to Radian 

Asset Assurance Incorporated, 

 Plaintiff–Appellee,

v.

MADISON COUNTY, MISSISSIPPI, acting by and through its duly elected 

Board of Supervisors, 

 Defendant–Appellant.

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 3:13-CV-686

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

This case stems from a dispute over the interpretation of a Contribution 

Agreement between Appellant Madison County, Mississippi (“the County”),

and Parkway East Public Improvement District (“Parkway East”), a 

Mississippi special-purpose government entity. Appellee Assured Guaranty 

Corporation (“Assured”) insured bonds issued by Parkway East. Assured seeks 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 31, 2017

Lyle W. Cayce

Clerk

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a declaratory judgment finding the Contribution Agreement valid and 

obligating the County to advance bond payments regardless of whether 

Parkway East reimburses the County within the two-year period described in 

the contract. The district court found in favor of Assured, and the County now 

appeals. Because the plain language of the Contribution Agreement conditions

the County’s advancement obligation on Parkway East’s performance of its 

obligations, we REVERSE and REMAND for further proceedings consistent 

with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 22, 2002, the County created a special-purpose 

government entity called Parkway East under Mississippi Code § 19-31-1.1

“Parkway East was created for the purpose of financing and managing the 

acquisition, construction, and operation of capital infrastructure 

improvements within the 1,050 acres of land that comprise” the district. 

Landowners within Parkway East are responsible for “all costs and expenses 

to be incurred by Parkway East in the construction and financing of the 

District Project and/or in the furtherance of Parkway East’s purposes.” To this 

end, in July 2005, Parkway East issued special assessment bonds in an 

aggregate principal amount of $27,770,000. The final maturity date of the 

bonds is 2030. Proceeds from the bonds are to be used to cover construction 

costs, and Parkway East is required to make bond payments by levying special 

assessments on parcels of land within the district. 

On July 27, 2005, Parkway East and the County entered into a 

Contribution Agreement to help Parkway East market the bonds at a lower 

 

1 Two years later, Parkway East was divided into two districts—Parkway South and 

the Parkway East that now exists. When we refer to Parkway East in this opinion, we are 

referring to the newer iteration of that district. 

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interest rate.2 The Contribution Agreement begins with a set of “whereas” 

provisions establishing the facts underlying the agreement. Among other 

things, this portion of the contract includes a paragraph describing the purpose 

of the Contribution Agreement as “memorializ[ing] [the parties’] mutual 

understanding with respect to the joint participation of the County and 

Parkway East in the financing of public infrastructure improvements and 

facilities to be located within the County and Parkway East.” These 

paragraphs are then followed by seventeen numbered sections describing a 

series of “mutual covenants and promises.” 

Section 3 of the Contribution Agreement, which is at issue in this case, 

describes three obligations by which the County and Parkway East are bound. 

The parties disagree about the following portions of Section 3: (1) a promise 

that the County advance funds when Parkway East cannot make bond 

payments if the County is satisfied with Parkway East’s performance of its 

obligations under the Contribution Agreement, and (2) a requirement that 

Parkway East reimburse the County for such advances within two years of 

when they are made. 

In connection with its issuance of bonds, Parkway East also purchased a 

bond insurance policy from Radian Asset Assurance, Inc. (“Radian”). During 

this litigation, Radian was purchased by Assured. Thus, Radian’s assets and 

obligations became the assets and obligations of Assured.3 As bond insurer, 

Assured only makes bond payments if a shortfall remains after applying funds 

from special assessment collections and any contribution made by the County. 

 

2 Assured also posits that the Contribution Agreement made the bonds eligible for 

bond insurance. 

3 Hereinafter, for convenience, we will refer to the bond insurer as “Assured”

regardless of whether Radian or Assured actually took the action(s) being described.

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Unfortunately, the anticipated commercial development of Parkway 

East never materialized. And in October 2011, Parkway East, being unable to 

make its regularly scheduled bond payments, requested that the County, 

pursuant to Section 3 of the Contribution Agreement, advance payment to 

service the debt. The County advanced bond payments four times—in October 

2011, April 2012, October 2012, and April 2013. On October 18, 2013, the 

County refused to make any further advance payments because Parkway East 

had failed to reimburse the County within two years, an obligation the County 

alleged had to be fulfilled before the County was required to make advances. 

Since November 2013, Assured has, and continues to, advance funds to cover 

any bond payment deficiencies. 

On November 1, 2013, Assured sued the County seeking, among other 

things, a declaration that the County is obligated to continue advancing funds 

under the Contribution Agreement regardless of whether Parkway East 

reimburses the County within two years.4 On November 21, 2014, both parties 

filed motions for partial summary judgment. In April 2015, the district court 

entered an order granting in part and denying in part Assured’s motion and 

denying the County’s motion. As relevant to this appeal, the district court held 

that the two-year reimbursement requirement in Section 3 of the Contribution 

Agreement was not a condition precedent to the County’s obligation to advance 

bond payments. That said, the court did acknowledge the conditional nature of 

the County’s obligation to make bond payments and agreed with the County 

that Parkway East’s reimbursement obligation was binding on it. The district 

court also determined that the County’s obligation to make such advance 

payments lasted for the life of the bonds. 

 

4 Assured can sue for enforcement of the contract as a third-party beneficiary to the 

Contribution Agreement. 

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In March 2016, Assured filed a second motion for partial summary 

judgment, which the district court granted on April 27, 2016. In its order, the 

district court once again found that the County was obligated to advance 

payments so long as the bonds remained outstanding, regardless of whether 

Parkway East reimbursed the County within two years. The court further 

ordered the County to pay Assured $3,160,616.70—$1,153,211.47 to reimburse 

Assured for payments it made servicing the debt, and $2,007,405.23 to 

replenish Parkway East’s Debt Service Reserve Fund. This appeal followed.

II. DISCUSSION

This Court reviews a grant of summary judgment de novo using the same 

standard as the district court. Fireman’s Fund Ins. Co. v. Murchison, 937 F.2d 

204, 207 (5th Cir. 1991). Summary judgment is appropriate where “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56.

This Court also reviews de novo the initial determination of whether a 

contract is ambiguous. Clardy Mfg. Co. v. Marine Midland Bus. Loans Inc., 88 

F.3d 347, 352 (5th Cir. 1996). Where a contract is unambiguous, interpretation 

of that contract is likewise a question of law reviewed de novo. Id. But if a 

contract is ambiguous and its interpretation requires the Court to consider 

extrinsic evidence, we review for clear error. Id. The applicable rules of contract 

interpretation are furnished by state law—here, that of Mississippi. Id.

The Mississippi Supreme Court has laid out the following tiered 

approach to contract interpretation:

First, the “four corners” test is applied, wherein the reviewing 

court looks to the language that the parties used in expressing 

their agreement. Second, if the court is unable to translate a clear 

understanding of the parties’ intent, the court should apply the 

discretionary “canons” of contract construction. Finally, if the 

contract continues to evade clarity as to the parties’ intent, the 

court should consider extrinsic or parol evidence. It is only when 

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the review of a contract reaches this point that prior negotiations, 

agreements and conversations might be considered in determining 

the parties’ intentions in the construction of the contract.

Tupelo Redevelopment Agency v. Abernathy, 913 So. 2d 278, 284 (Miss. 2005)

(citations omitted). When looking at the language of a contract, a court must 

“read the contract as a whole, so as to give effect to all of its clauses.” Royer 

Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 752 (Miss. 

2003). 

The controversy in this case centers on Section 3 of the Contribution 

Agreement:

County Contribution. [1] Provided that the covenants, agreements 

and obligations of Parkway East as stated herein are performed 

and/or provided to the County’s satisfaction, the County hereby 

agrees that in the event Parkway East fails, for any reason, to levy 

and/or collect (or have collected) a sufficient amount of Special 

Assessments from the owners of land within Parkway East in 

order to satisfy any Debt Service Payment, the County shall 

advance to the paying agent, and/or the Bond trustee, the 

outstanding amount required to satisfy the deficient Debt Service 

Payment. [2] The parties also agree that, in the event of a sale of 

a parcel of land for taxes (pursuant to Section 19-31-33 of the Act) 

upon which a Special Assessment was levied but not collected, the 

County shall be immediately reimbursed for the County’s advance 

to such deficiency with the proceeds of such tax sale. The Amount 

of such reimbursement shall be equal to the amount the County 

advanced to the paying agent, and/or the Bond trustee, pursuant 

to this Section 3, including any interest accrued thereon at the 

statutory rate. [3] Notwithstanding the above, Parkway East 

hereby covenants and agrees to provide full reimbursement to the 

County, no later than two (2) years from the date the deficient Debt 

Service Payment is made, for the amounts the County provides to 

the paying agent, and/or the Bond trustee, pursuant to this Section 

3, regardless of the source of the Parkway East funds to pay such 

reimbursement.5

 

5 To aid in explanation we have numbered this provision and will hereinafter refer to 

Parts 1, 2, and 3.

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In essence: Part 1 obligates the County to advance bond payments when 

Parkway East cannot make them; Part 2 provides that when a parcel of land 

is sold for taxes, Parkway East shall immediately use that money to reimburse 

the County for any advances it has made; and Part 3 otherwise requires 

Parkway East to reimburse the County for bond-payment advances within two 

years of when the advances were made.

The parties agree that the Contribution Agreement is unambiguous, but 

disagree about the import of Part 3. The County argues that Part 3’s 

reimbursement provision is a condition precedent to its obligation to advance 

funds for bond payments. In other words, the County contends that if Parkway 

East fails to reimburse it for bond-payment advances within two years of when 

the advances are made, it is no longer required to make any future advance 

payments. Assured, however, argues that Part 3’s reimbursement provision is 

separate and removed from any conditional language in Part 1 and accordingly 

that reimbursement is not a condition precedent to the County’s obligation to 

make advance payments under Part 1. Thus, Assured posits that the County 

is obligated to make bond-payment advances as long as the bonds remain 

outstanding, regardless of whether Parkway East ever reimburses the County. 

Section 12 of the Contribution Agreement provides that the agreement shall 

last for “the duration of any Bonds issued by Parkway East.”

A. The Plain Text of the Contribution Agreement

As an initial matter, both parties agree that the plain meaning of the 

words “provided that,” which begin Part 1, is to create a condition. See 

Provided, Webster’s New Collegiate Dictionary (1975) (defining “provided” to 

mean “on condition that”). But the parties disagree over which “covenants, 

agreements and obligations” are included in the condition created by Part 1.

Assured argues that the covenant set forth by Part 3 is not one of the 

covenants to which Part 1 refers because Parts 1 and 3 are both spatially and 

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syntactically separated from one another. Assured argues that: (1) there is no 

connection between Parts 1 and 3 because the two are separated by several 

sentences, and (2) the words “[n]otwithstanding the above,” which begin Part 

3, “carve out” the reimbursement provision from any condition created by Part 

1. 

Assured’s arguments are unpersuasive. The plain text of the contract 

does not suggest that the “covenants, agreements and obligations” referred to 

in Part 1 are limited to any particular set of covenants provided in the contract. 

Rather, the condition in Part 1 refers generally to any covenant in the 

Contribution Agreement to which Parkway East agreed. Moreover, use of the 

word “notwithstanding” in Part 3 does not carve out any promise created by 

the sentence that follows. The plain meaning of “notwithstanding” is “in spite 

of” or “despite.” Notwithstanding, Webster’s New Collegiate Dictionary (1975); 

see also Adams v. Baptist Mem’l Hosp.-Desoto, Inc., 965 So. 2d 652, 656 (Miss. 

2007) (defining “notwithstanding” to mean “(1) In spite of; (2) Nevertheless; (3) 

In spite of the fact that”). Consistent with this definition, there is also general 

agreement among courts that “a ‘notwithstanding’ clause clearly signals the 

drafter’s intention that the provisions of the ‘notwithstanding’ section override 

conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 

U.S. 10, 18 (1993); see also, e.g., Warberg Opportunistic Trading Fund, L.P. v. 

GeoResources, Inc., 973 N.Y.S.2d 187, 191 (N.Y. App. Div. 2013) (“It is well 

settled that trumping language such as a ‘notwithstanding’ provision ‘controls 

over any contrary language’ in a contract.”); cf. Adams, 965 So. 2d at 656 

(holding that “notwithstanding” language in a subsection of a state statute 

overrode a specifically identified conflicting subsection). We agree with this 

interpretation.

Given that the plain meaning of “notwithstanding” is “in spite of,” logic 

dictates that the word “notwithstanding” implies some contradiction regarding 

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what it refers to. Thus, Assured is only correct that the reimbursement 

covenant in Part 3 is carved out from the remainder of the provision at issue if 

Part 3 contradicts both Parts 1 and 2. However, only Part 2—requiring 

immediate reimbursement by Parkway East under certain circumstances—

conflicts with the two-year reimbursement requirement of Part 3. Part 1, on 

the other hand, is wholly consistent with Part 3. There is no tension between 

a requirement that the County advance bond payments when Parkway East is 

unable to make them if Parkway East satisfies its obligations under the 

Contribution Agreement (Part 1) and a requirement that Parkway East 

reimburse the County for such advances within two years of when they are 

made (Part 3). Accordingly, we find that the language “notwithstanding the 

above” does not carve out Parkway East’s obligation to reimburse the County 

from the obligations referred to in Part 1. 

Assured also argues that requiring Parkway East to reimburse the 

County for bond-payment advances is nonsensical because if Parkway East is 

unable to make bond payments and the County then advances payment, 

Parkway East clearly cannot afford to reimburse the County. This argument 

is unpersuasive for two reasons. First, the event triggering the County’s 

obligation to advance bond payments is Parkway East’s failure to “levy and/or 

collect (or have collected) a sufficient amount of Special Assessments from the 

owners of land within Parkway East.” But Parkway East is required to 

reimburse the County within two years of an advance “regardless of the source 

of . . . funds.” Accordingly, it is entirely possible that Parkway East would be 

unable to levy or collect a sufficient amount of funding from special 

assessments to cover the bond payments but would be able to use other funding 

sources to reimburse the County. For example, in at least one instance,

Parkway East used money from the Revenue Fund, at the County’s request, to 

make bond payments in November 2009 because insufficient special 

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assessments had been levied/collected. Second, as the County points out in its 

reply brief, the reimbursement provision gives Parkway East two years to 

recover its financial footing. Indeed, Part 2 of the provision clearly illustrates 

one way in which this could occur—Parkway East could have collected 

insufficient special assessments when bond payments became due but later 

could have sold a parcel of land, giving it the ability, and obligation, to 

reimburse the County immediately for a previous advance. Thus, there is 

nothing necessarily illogical about requiring Parkway East to reimburse the 

County for bond-payment advances within two years.

B. The Amortization Approval Certificate

1. The Language

Assured also argues that the Amortization Approval Certificate (“the 

Certificate”), signed by the County at bond closing, unambiguously shows that 

the reimbursement provision is not one of the covenants on which the County’s 

obligation to advance bond payments is conditioned. Under Mississippi law, a 

court can construe several documents together to form a single instrument 

where “they are executed at the same time, by the same parties, as part of the 

same transaction.” Avakian v. Citibank, N.A., 773 F.3d 647, 652 (5th Cir. 2014)

(quoting Sullivan v. Mounger, 882 So. 2d 129, 135 (Miss. 2004)). This is true 

even where the documents do not “include a written provision which 

specifically recites that all documents are part of an integrated, or global, 

transaction.” Id. (quoting Sullivan v. Protex Weatherproofing, Inc., 882 So. 2d 

256, 259–60 (Miss. 2005)). Because the Certificate and Contribution

Agreement meet these requirements, we construe them together.

The Certificate, signed by a County representative, provides the 

following:

I, Paul Griffin, President of the Board of Supervisors of Madison 

County, Mississippi (the “County”), pursuant to and as required by 

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Sections 5 and 7 of that certain Contribution Agreement dated 

July 27, 2005 (the “Contribution Agreement”) by and between the 

County and the Parkway East Public Improvement District (the 

“District”), for and on behalf of the County do hereby approve the 

bond amortization and debt service schedule attached as Exhibit 

A hereto in connection with the District’s $27,770,000 Special 

Assessment Bonds, Series 2005, dated July 27, 2005, and further 

state, for and on behalf of the County, that the covenants, 

agreements and obligations of the District as stated in the 

Contribution Agreement have been performed and/or provided to 

the County’s satisfaction.

Assured argues that the language in the Certificate describing Parkway East’s 

“covenants, agreements and obligations” that must be performed to “the 

County’s satisfaction”6 evinces a limitation on what conditions are specified by 

this language. Given that the Certificate was signed at bond closing, Assured 

claims it would not make sense for the County to agree that Parkway East’s 

obligations had been performed to the County’s satisfaction where Parkway 

East would not yet have had the opportunity to perform—for example, in the 

case of the reimbursement requirement.7 Accordingly, Assured contends that 

the “covenants, agreements and obligations” to which the Certificate refers 

only include those that would have been performed at the time of bond closing. 

Because the Certificate and Part 1 of the Contribution Agreement contain 

near-identical condition of satisfaction clauses, Assured concludes that the 

condition created in Part 1 of the Contribution Agreement provision likewise 

only refers to the conditions Parkway East would have performed at the time 

of the bond closing. Thus, according to Assured, the County’s duty to advance 

bond payments is not be conditioned on Parkway East’s promise to reimburse.

 

6 We will also refer to this language as a “condition of satisfaction clause” or “condition 

of satisfaction language.”

7 In fact, the County enumerates seven other obligations Parkway East bore under 

the Contribution Agreement and that Parkway East would not have performed at bond 

closing.

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Assured’s argument falls short. While Assured is correct that the 

condition of satisfaction language in the Certificate must only have related to

the covenants Parkway East was able to perform before bond closing, an 

identical understanding cannot extend to the Contribution Agreement. As the 

County outlines in its reply brief, under Assured’s interpretation, none of the 

post-closing covenants in the Contribution Agreement could serve as 

conditions precedent to the County’s obligation to make advance payments. 

Parkway East could “sell land for taxes and not reimburse the County, sell 

land for residential purposes and not use proceeds to redeem bonds, refuse to 

allow the County to have parcels appraised, not maintain a construction 

contingency fund, or fail to reimburse the County for its advances” and the 

County would still be required to advance bond payments. Because Assured’s 

interpretation makes Part 1’s conditional language superfluous, the condition 

of satisfaction language in Part 1 must unqualifiedly refer to all the 

“covenants, agreements and obligations” created by the Contribution 

Agreement. See S. Ry. Co. v. Anderson & Fuller, 130 So. 743, 744 (Miss. 1930) 

(holding that all contract provisions must be given effect). 

This interpretation is also consistent with the Certificate’s language. It 

is possible that both the Certificate and Contribution Agreement require the 

County to be satisfied that Parkway East is performing its obligations under 

the contract, but that these evaluations occur at different times and thus 

inherently include different obligations. While the Certificate requires the 

County to assess its satisfaction with Parkway East’s conduct at the time of 

bond closing, the Contribution Agreement requires the County to do the same 

when Parkway East is unable to make a bond payment. Accordingly, we 

conclude that the Contribution Agreement unambiguously conditions the 

County’s obligation to advance bond payments on Parkway East’s performance 

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of all its covenants under the Contribution Agreement—including its promise 

to reimburse the County.

2. Quasi-Estoppel

Finally, Assured contends that the Certificate serves to estop the County 

from asserting that it is dissatisfied with Parkway East’s performance and 

accordingly suspending bond payments. Mississippi’s doctrine of quasiestoppel “precludes a party from asserting, to another’s disadvantage, a right 

inconsistent with a position [it has] previously taken.” Bailey v. Estate of Kemp, 

955 So. 2d 777, 782 (Miss. 2007) (alteration in original) (quoting Bott v. J.F. 

Shea Co., Inc, 299 F.3d 508, 512 (5th Cir. 2002)). Quasi-estoppel “applies when 

it would be unconscionable to allow a person to maintain a position 

inconsistent with one to which he acquiesced, or from which he accepted a 

benefit.” Id. (quoting Bott, 299 F.3d at 512). 

Assured’s quasi-estoppel argument is only compelling if the County 

signed the Certificate intending to agree that it was satisfied with Parkway 

East’s performance of all its obligations under the Contribution Agreement—

including those that Parkway East could not possibly have performed by bond 

closing. Because such an interpretation makes little sense, we hold that the 

County is not estopped from arguing that Parkway East’s performance was 

unsatisfactory and suspending bond payments.

III. CONCLUSION

For the foregoing reasons, we hold that Section 3 of the Contribution 

Agreement unambiguously conditions the County’s duty to advance bond 

payments on Parkway East’s reimbursement of such advances within two 

years. Accordingly, we REVERSE the district court’s grant of summary 

judgment and REMAND the case for further proceedings consistent with this 

opinion.

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