Under Fifth Circuit Rule 47.5, we have determined that this opinion should not be

*

published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20197

Summary Calendar

FEDERAL LAND BANK ASS’N OF SOUTH ALABAMA, FLCA,

Plaintiff-Third Party Defendant–

Appellee

v.

H&H WORLDWIDE FINANCIAL SERVICE, INC.,

Defendant

and

STEVEN P. MOCK,

Third Party Defendant–Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-cv-02832

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

November 16, 2009

Charles R. Fulbruge III

Clerk
No. 09-20197

2

The district court found Steven P. Mock liable for civil conspiracy against

the Federal Land Bank Association of South Alabama, FLCA (the “Bank”). On

appeal, Mock argues that the district court abused its discretion in finding him

liable because the final pretrial order sought no relief against him. Mock failed

to raise this argument in the district court, and he is barred from doing so now.

We affirm the district court’s judgment. 

I. BACKGROUND

The Bank lent $68.5 million (the “Loan”) to H&H Worldwide Financial

Service, Inc. (“H&H”). Mock was an attorney and a senior officer for H&H. The

Bank sued H&H and related defendants (collectively the “H&H Defendants”)

and John R. Crouch for wrongdoing in connection with the loan. The Bank

alleged that the H&H Defendants conspired with Crouch, an officer of the Bank,

to commit RICO violations, securities fraud, common law fraud, and other

wrongful acts in connection with the Loan. 

The H&H Defendants answered and counterclaimed, alleging that certain

loan documents were incomplete at execution and therefore unenforceable. In

response, the Bank filed a third-party complaint against Mock, claiming that

Mock represented in writing to the Bank that the loan documents were binding

and enforceable. The Bank contended that if the loan documents were not fully

enforceable, then Mock was liable to the bank for negligent misrepresentation,

common-law fraud, and fraudulent inducement. The third-party complaint also

contained a claim against Mock for civil conspiracy, which was not contingent

on the H&H Defendants’ success on their counterclaim. In a subsequent

amendment, the Bank dropped the fraudulent inducement claim but maintained

the negligent misrepresentation, common-law fraud, and civil conspiracy claims.

The district court dismissed the H&H Defendants’ counterclaims,

rendering moot the Bank’s third-party negligent misrepresentation and fraud
No. 09-20197

3

claims against Mock. The only claim remaining against Mock was the civil

conspiracy claim. 

The parties filed their proposed pretrial order. On appeal, Mock argues

that the pretrial order did not even mention him. This is not accurate. The

pretrial order listed Mock as appearing pro se, and the pretrial order’s statement

of the case described Mock as an attorney who represented H&H in connection

with the loan closings. Also in the statement of the case, the Bank asserted that

in making the loans it relied on fraudulent statements made by the defendants,

that the proceeds of the loans were used for unlawful purposes, and that some

or all of the defendants compensated Crouch for his participation. 

Immediately before trial, the district court asked the parties (including

Mock) in open court if they had looked at the pretrial order. They indicated that

they had. The district court confirmed that it was a joint order and instructed

the parties to sign it. The district court also confirmed that although the Bank

had dismissed its negligent misrepresentation, common-law fraud, and

fraudulent inducement claims against Mock, the Bank still had a civil conspiracy

claim against Mock. Indeed, the district court noted that the civil conspiracy

claim was the only reason for Mock’s ongoing involvement in the case.

In his initial appeal brief, Mock argues that the district court abused its

discretion in finding him liable because the final pretrial order sought no relief

against him. In its responsive brief, the Bank argues that Mock is barred from

raising this argument in the appellate court because he failed to raise it in the

district court. Mock did not file a reply brief. 

II. ANALYSIS

We have jurisdiction over the district court’s final judgment under 28

U.S.C. § 1291. 

Mock argues that immediately before trial, he stated in open court that the

pretrial order limited the Bank’s relief against him. The record does not support
No. 09-20197

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this assertion. The transcript of court proceedings immediately before trial does

not show that Mock made any statements at all, much less that he argued that

the pretrial order limited the Bank’s relief. Further, the docket shows a flurry

of activity in the days leading up to the trial, but nothing indicates that Mock or

anyone else filed any documents relating to this issue. 

When a party “fail[s] to present [an] argument to the district court,” the

party usually is “barred from making this argument on appeal.” Doe v.

MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008). “To avoid being waived, an

argument ‘must be raised to such a degree that the trial court may rule on it.’”

Brown v. Ames, 201 F.3d 654, 663 (5th Cir. 2000) (quoting In re Fairchild

Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993)); see also Stokes v. Emerson

Electric Co., 217 F.3d 353, 358 n.19 (5th Cir. 2000) (“Arguments not raised in the

district court cannot be asserted for the first time on appeal.”). Because Mock

failed to raise this argument in the district court, he is barred from raising it on

appeal.

Moreover, Mock would not prevail even if he were not barred from raising

this argument. On appeal, we review a trial court’s interpretation of a pretrial

order for abuse of discretion. Hall v. State Farm Fire & Cas. Co., 937 F.2d 210,

212-13 (5th Cir. 1991). Generally, we will not reverse unless “[a]n issue or

theory [is] not even implicitly included in the pretrial order.” Morris v. Homco

Int’l, Inc., 853 F.2d 337, 342 (5th Cir. 1988). Here, it is true that the pretrial

order did not explicitly state that the Bank was bringing a claim for civil

conspiracy against Mock. But the pretrial order stated that Mock was a

defendant and described his role in the conspiracy. Further, Mock knew that the

Bank had brought a conspiracy claim against him because that claim was in

both the counterclaim and the amended counterclaim, and the district court

restated it at the beginning of trial. Accordingly, the district court did not abuse

its discretion by finding Mock liable for civil conspiracy. 
No. 09-20197

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We affirm the district court’s judgment.