[ DO NOT PUBLISH ] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No

. 16

- 14801

________________________ D.C. Docket No. 3:13

- cv - 00191

- MCR

- CJK
LNV CORPORATION , Plaintiff

- Appellant,

versus BRANCH BANKING AND TRUST COMPANY, Defendant

- App ellee

.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ (January 11, 2018) Before MARCUS and NEWSOM , Circuit Judges and BUCKLEW , * District Judge

. PER CURIAM :

* Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida, sitting by designation.

Case: 16-14801 Date Filed: 01/11/2018 Page: 1 of 152 I This case features a contract dispute between two companies that entered into a “participation agreement.” In a traditional participation agreement, a “lead ” bank loans money to a borrower and then sells a piece of the loan to a “participant” bank. Here, a lead bank loaned money to finance a Florida real

- estate venture in 2005 , and a participant bank joined 23.08% of the action via a participation agreement. T he collapse of the real

- estate market in the late 2000s wiped out the original parties to the a greement and s a nk the venture itself , pushing the borrowers into default. In 2009 , our appellee Branch Banking and Trust Company (“BB&T”) acquired the lead bank’s portfolio, which included two loans

— the “Owls Head” loan and the “JLD” loan

— both of which f inanced portions of the defunct real

- estate development

. At around the same time, appellant LNV Corporation acquired the 23.08% participant’s share in the Owls Head loan for $197,345 , thus placing BB&T and LNV in the a greement’s lead

- participant relations hip vis

- à

- vis the Owls Head loan. As lead, BB&T immediately sued the defaulted Owls Head borrowers and guarantors, seeking to recover the value of the loans. During the litigation, the value of collateral underlying both loans dropped dramatically, and BB&T accordingly charged down the loans’ book value s . The Owls Head loan had a book value of $16.2 million when BB&T acquired it in May 2009, but by July

Case: 16-14801 Date Filed: 01/11/2018 Page: 2 of 153 2011 B B&T had charged it down to $1.47 million. Similarly, the JLD loan had a book value of $5.9 million in August 2010, but in June 2011 BB&T ch arged it down to $2.48 million. At a court

- ordered mediation in August 2011 , Douglas Duncan

— an original Owls Head gu arantor who was personally liable on the loan

— and BB&T agreed to assign both the JLD and Owls Head loans to one of Dunc an’s companies for $10 million. This transaction between BB&T and Duncan effectively dissolved the loans, terminating the rights of thos e who had previously held an interest in them

— that is, BB&T and LNV

— against Duncan. Of this $10 million settlement, BB&T unilaterally

— and LNV says suspiciously

— allocated $2.5 million to the Owls Head loan , which had $34.6 million outstanding, and $7.5 mil lion to the JLD loan, which had $9.6 million outstanding. These figures resulted in a 7.2% recovery on the Owls Head loan, of which LNV owned 23.08%, and a 78.3% recovery on the JLD loan, which BB&T owned alone. T he loans’ book values

— trading at roughly 50% discounts when BB&T acquired them in 2009

— had since diverged even further from their face values; according to BB&T’s analysis , the Owls Head loan was worth $1.47 million while the JLD loan was worth $2.48 million. 1

1 In defending what appeared to be disproportionate allocations

— particularly relative to the loans’ respective face values

— BB&T has consistently maintained that the division reflected the

Case: 16-14801 Date Filed: 01/11/2018 Page: 3 of 154 Shortly after the August med iation, BB&T informed LNV of Duncan’s $2.5 million offer for the Owls Head loan, but did not disclose the total $10 million settlement amount, the allocation, or the fact that it had already reached an agreement with Duncan to settle the lawsuit

. In Septe mber 2011, LNV rejected Duncan’s settlement offer. Nevertheless, the following month , BB&T informed LNV that it intended to accept Duncan’s offer, and in November, BB&T and Duncan closed on the sa le and assignment of the loans. Once it received the funds , BB&T promptly forwarded to LNV $577,000

— 23.08% of the $2.5 million purchase price allocated to Owls Head

. LNV sued BB&T in September 2012 , asserting that BB&T had breached the participation a greement

— in particular, by materially changing the loans’ terms without LNV’s consent

— and thereby harmed LNV. Following a bench trial, the district court held that although BB&T had breached the a greement, LNV “ failed to prove damages on the breach of contract claim. ” The court thus awarded LNV zero damages (and separately denied LNV ’s

fact that the collateral securing the JLD loan had a higher value tha n that securing the Owls Head loan and that the JLD litigation was less complex than the Owls Head litigation.

Case: 16-14801 Date Filed: 01/11/2018 Page: 4 of 155 request for attorneys’ fees )

. LNV timely appealed to this Court. We affirm , largely for the reasons explained by the district court. 2 II LNV presents a panoply of issues and arguments on appeal, all of which revolve around one central contention : that the district court erred in awarding LNV no damages. Despite the participation a greement’s complicated nature , we agree with the district court that the case is resolvable by reference to fundamental tenets of contract law. By its terms, t he participation agreement is “governed by, and [is to be] construed in accordance with, the law of the State of Georgia

. ” I t is hornbook law in Georgia , as elsewhere, that i n order to recover damages for breach of contract, a plaintiff must s eparately prove both breach and damages

. See Simmons v. Boros , 335 S.E.2d 662, 663 ( Ga. Ct. App. 1985), aff’d , 341 S.E.2d 2 ( Ga. 1986) (explaining that plaintiff must show “ both the breach and the damage” ) (emphasis in original) ; see also Norton v. Budget Rent A Car System, Inc ., 705 S.E.2d 305, 306 (Ga. Ct. App. 2010) (“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right

2 BB&T crossed

- appealed , asking us to reverse the district court’s determination that BB&T breached the a greement. Because t he district court’ s breach ruling was not necessary to its decision in BB&T’s favor, it has no preclusive effect , See Bobby v. Bies , 556 U.S. 825, 835 (2009). Accordingly, because BB&T prevailed in the district court, and is not otherwise aggrieved by th at court’s breach ruling, we dismiss BB&T’s cross

- appeal. See Agripost, Inc. v. Miami

- Dade Cnty., ex rel. Manager , 195 F.3d 1225, 1229

– 30 & n. l2 (11th Cir. 1999).

Case: 16-14801 Date Filed: 01/11/2018 Page: 5 of 156 to complain about the contract being broken.”) (i nternal quotations, citations omitted)

. Whether BB&T did or did n’t breach the participation a greement

— the district court found that it did

— is a difficult questio n . The contract seems to us to be a maze of internally contradictory provisions that interac t with each other in inconsistent ways. Fortunately for us, the issue of breach is ultimately irrelevant because we hold that the district court correctly concluded that LNV failed to prove its damages with sufficient (or really any) certainty . Bad facts make bad law

— so too with bad contracts. Since we need n’t deter mine whether BB&T breached the a greement, we won’t. Instead, we’ll move directly to a consideration of LNV’s damages arguments. First, some contract

- damages basics. Under Georgia law, damage s for breach of contract “are given as compensation for the injury sustained as a result of the breach of a contract,” and “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such bre ach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” Ga. Code Ann. §§ 13

- 6

- 1, 13

- 6

- 2 ; see also, e.g. , Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. I: Civil C ases, § 18.010 (5th ed. 2017) ( “D amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from

Case: 16-14801 Date Filed: 01/11/2018 Page: 6 of 157 the breach and such as the parties contemplated when the contract was made as the probable result of t he breach.”). Accordingly, Georgia courts have explained that a plaintiff suing for breach of contract should , if successful, recover the full benefit of his bargain, but no more. See Al & Zack Brown, Inc. v. Bullock , 518 S.E.2d 458, 461 (Ga. Ct. App. 19 99) (explaining that a damage award should “put [ the plaintiff ] in as good a position as if the defendant had fully performed the contract”) ( internal quotation marks omitted ) ; Gainesville Glass Co. , Inc. v. Don Hammond, Inc. , 278 S.E.2d 182, 185

– 86 ( Ga. Ct. App. 1981) (“[A] n injured party cannot be placed in a better position than he would have been in if the contract had not been breached.” )

. Importantly here, Georgia courts have held

— in common with the prevailing understanding

— that while a plaint iff need not prove a precise measure of damages, it must provide “ data sufficient to enable [the factfinder] to estimate with reasonable certainty the amount of the damages.” Simmons , 335 S.E.2d at 663. The factfinder, that is, “cannot be left to specula tion, conjecture and guesswork.” Id .; see also , e.g. , McCannon v. McCannon , 499 S.E.2d 684, 686 (Ga. Ct. App. 1998 ) (damages must be proved “to a reasonable certainty”); Restatement (Second) of Contracts § 352 (1981) (“ Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.”). In this lawsuit, LNV thus had the burden of proving a “ reasonabl [y] certain[]”

Case: 16-14801 Date Filed: 01/11/2018 Page: 7 of 158 estimation of its expectation interest

— or whatever benefit its bargain with BB&T

war ranted

. As we explain below, w e agree with the district court that LNV failed to prove this essential cornerstone. A Before getting into the specifics of LNV’s damages claim, we must first address LNV’s preliminary contentions (1) that Georgia law tasks it with only a minimal burden of proof and (2) that the district court’s analogy to legal

malpractice cases was legally erroneous

. 1 Burden of proof

— how much, and who has it

— features prominently in LNV’s damages argument
. LNV attempts to minimize its burden with two lines of argument: first, it argue s that “[o]nce LNV established the amount it was presumptively owed, the burden shifted to BB&T to pro ve any reduction of this
amount ” ; second, LNV contends that “[o]nce the fact of causation is establi shed, the burden of proving damages is much less severe.” Br. of Appellant at 26, 39. Neither argument withstands scrutiny . To support its first line of attack, LNV focuses on dicta in an unrelated antitrust opinion, Willesen v. Ernest Communications, I nc. , 746 S.E.2d 755 ( Ga. Ct. App. 2013)

. Even setting Willesen ’s off

- point

- ness aside, LNV fails to meet t he seemingly lighter burden Case: 16-14801 Date Filed: 01/11/2018 Page: 8 of 159 that it seeks to invoke because

— as we explain below

— LNV failed (to use its phrase) to “establish[] the amount it was presumptively owed.” LNV’s second argument fares no better. LNV repeatedly suggests that it need not prove damages with exact precision because it effectively proved causation of damages

— i.e. , breach

— even if it did not prove these damages’ precise quantum

. But this supposedly reduced burden of proof is really just the well

- established “reasonable certainty” requirement, already discussed, which

— for reasons we will also explain

— LNV fails to meet
. 2 LNV ’s second broadside is to suggest that the district court’s invocation of damage calculations in legal

- malpractice suits constituted reversible legal error. LNV’s contention is unavailing . N ot only does LNV overstate the district court’s reliance on the malpractice framework

— although the court noted that it found the approach “instructive,” nowhere in its opinion did the court claim to adopt the malpractice standards wholesale

— but contrary to LNV’s critique, the basic damages framework that applies i n legal

- malpractice cases is applicable to the instant case. The district court looked to legal

- malpractice claims to conceptualize expectation interest

— an essential component of any damages calculation

— and found that the success of BB&T’s litigation again st the loan guarantor Duncan and

Case: 16-14801 Date Filed: 01/11/2018 Page: 9 of 1510 the subsequent collectability of the loan’s payout from Duncan necessarily affected LNV’s legitimate expectation. Despite LNV’s assertions, this approach strikes us

as neither particularly novel nor unique . R ather, it represents a commonsensical intuition that applies across various contexts : damages reflect expectations; expectations must account for the uncertainty of contingent inputs necessary to produce the expected outcome ; therefore , damages must be discounted by the contingencies’ probability of occurring

. Cf. In re Advanced Telecomm

. Network, Inc. , 490 F.3d 1325 , 1335 (11th Cir. 2007) (r easoning that “ the proper approach [to valuing an asset] would have simply discounted the expected value of the judgment by th e pr obability of its ever occurring ” ). The district court analogized to legal malpractice lawsuits because there, as here, a court has to discount the face value of a potential recovery by the probability that requisite events

— winning the underlying lawsuit and then collecting the award

— will occur. Such analysis is not “appropriate only in certain legal malpractice cases,” as LNV contends, Br. of Appellant at 29 (emphasis added) , but is instead a rational extension of m alpractice lawsuits’ probabilistic analysis

. The district court therefore did not err when it sought to determine the ways in which the probability of events essential to recovery affected the value of LNV’s legitimate expectation, and hence its recovery. * * * Case: 16-14801 Date Filed: 01/11/2018 Page: 10 of 1511 Having dealt with LNV’s global critiques of the district court’s methodology, we turn to its more particularized efforts to meet the “reasonable certainty” standard for proving its damages. B Unpredictability enshrouds every facet of the parti cipation a greement’s potential payouts , and thus set s a high hurdle for LNV in its attempt to prove damages to a reasonable certainty

. As already explained , the malpractice

- suit analogy is helpful insofar as it illustrates that, in order to determine dama ges, a court must discount any likely recovery by the probability of success in both the litigation and the post

- litigation collection . The district court applied these principles to the instant case, holding that “LNV failed to show that BB& T likely would have obtained a favorable judgment against Duncan, and how much, if any, of a favorable judgment it likely would have collected from him.” Without proving the probability of the necessary inputs, LNV failed to provide any guidance in determining an appropriate expected outcome. T he district court therefore had no benchmark against which it could assess the payout that LNV actually received, which left the court with no choice but to award zero damages. The same deficiency persists before u s . On appeal, LNV principally argues that our damages analysis should begin and end with the $34.6 million face value of the Owls Head loan. In particular,

Case: 16-14801 Date Filed: 01/11/2018 Page: 11 of 1512 LNV points to Paragraph 14(b) of the participation agreement and asserts that “[a]warding LNV damag es under [that provision] is

... consistent with the principles governing benefit of the bargain damages” because “the parties bargained for a specific price that BB&T would pay LNV in the event BB&T wished to materially modify the loan documents without obt aining LNV’s consent.” Br. of Appellant at 20

– 22. We fail to understand the argument

— and to the extent we understand it, we reject it. Paragraph 14(b) reads (with our emphasis added) as follows: (b) If Participant [ i.e. , LNV] is unwilling to consent to any amendment or modification of, or waiver of compliance with, the L oan Agreement or any other L oan Document (where the consent of Participant is required), Seller [ i.e. , BB&T] shall have the right, but not the obligation , to repurchase Participant’s Participation at such time for a purchase price equal to (A) Participant’s Share of any and all unpaid advances of the L oans made by Seller to Borrower under the L oan Agreement, and (B) any and all unpaid interest thereon and fees in connection therewith i n which Participant shares hereunder (but subject to Seller’s right of offset under Section 6(d) hereof, if applicable). There can be no serious argument that Paragraph 14(b) required BB&T to repurchase LNV’s shares at full face value

— here, 23.08% of $34. 6 million

. By its plain terms , the provision gave a “right”

— i.e. , an option

— to buy out LNV, but it expressly did “not” impose any “obligation” on BB&T to do so. Accordingly, contrary to LNV’s lead argument, t he parties did not “bargain for a specific pri ce

Case: 16-14801 Date Filed: 01/11/2018 Page: 12 of 1513 that BB&T would pay LNV,” but rather agreed only that BB&T could buy out LNV in order to modify the Owls Head loan. Since the participation a greement never mandated such a payout, LNV’s damage s model necessarily presumes ( 1 ) that BB& T would have prevailed in what surely would have been a lengthy litigation against Duncan , the guarantor ; ( 2 ) that following its triumph in court, BB&T would have collected a hundred cents on the dollar from Duncan ; and ( 3 ) that this eventuality accurately reflected the parties’ bargain and expectations

. Full face

- value recovery on a defaulted loan collateralized by recession

- wrecked Florida real estate would seem to defy even the most expansive conception of “expectation interest,” leaving LNV with a stee p uphill climb in its effort s to prove its damages to a reasonable certainty

. Those efforts are unavailing. In its attempt to satisfy the first contingency on its road to recovery

— that is, to prove that BB&T would have prevailed in its suit against Duncan

— LNV cites to a memorandum from August 2010 in which BB&T’s attorneys expressed optimism concerning its litigation prospect s . Along with other pleadings, LNV suggests that this document “satisfied any burden to show that BB& T would have obtained a judgment against Duncan for the full amount of the loan.” Br. of Appellant at 31. In the same memo, however, the attorney wrote that “the more time this [litigation] takes the more likely a success

Case: 16-14801 Date Filed: 01/11/2018 Page: 13 of 1514 by way of a paper judgment may b e rendered meaningl ess by an inability to collect.” The memo and other pleadings to which LNV cites are not only insufficient to show that BB&T would have recovered “the full amount of the loan” for BB&T’s breach , but, even assuming success at trial , non e of LNV’s proffered evidence convincingly demonstrates what LNV and BB&T would have ultimately collected from Duncan . As BB&T points out, LNV does nothing to engage with the collectability issue , except to erroneously argue that it is not required to eng age with the collectability issue

. Nor does LNV persuasively demonstrate that it reasonably expected or bargained for some payout that was reasonably certain to exceed what it received. In the event of breach, the breaching party should make the party tha t suffered the breach whole; that is, the breaching party should pay the non

breaching party the difference between expectation interest and any recovery that the non

- breaching party subsequently obtains. We know the precise figure of LNV’s post

- breach re covery

— $577,000 (on a $197,000 investment) . What we still do not know

— because LNV has not shown us

— is what LNV expected to receive, or wha t the parties “bargained” for. To be sure, full face value recovery is not LNV’s only theory of damages

— on appeal, LNV argues (albeit seemingly for the first time) that it is entitled to at least some damages either (1) because the

Case: 16-14801 Date Filed: 01/11/2018 Page: 14 of 1515 proceeds of the $10 million settlement were unfairly allocated between the JLD and Owls Head loans or (2) because the district c ourt should have awarded relief based on the value of the underlying collateral . But LNV’s failure to prove its expectation dooms every damage theory to a common fate ; without offering serious evidence of its expectation interest or the benefit of its bar gain with BB&T, LNV cannot prove that the $577,000 payout it received was damagingly inadequate. The district court therefore rightly rejected LNV’s primary and auxiliary damages argument s . 3 III For the foregoing reasons, we AFFIRM the district court’s ju dgment.

3 Finally, LNV asserts that it is entitled to a remand on the issue of attorney s’ fees. That is incorrect

. The district court correctly held that Georgia law prohibits an award of attorney s’ fees in the absence of other monetary or affirmative relief

. See, e.g ., Benchmark Builders, Inc. v. Schultz , 711 S.E.2d 639, 640 (Ga. 2011)).

Case: 16-14801 Date Filed: 01/11/2018 Page: 15 of 15