* Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 17, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 03-60835

(Summary Calendar)

_________________

BILL LIBBEY, doing business as Libbey’s Remodeling Service,

Plaintiff-Counter Defendant-Appellant,

versus

JOHN RIDGES; LUCILLE RIDGES,

Defendants-Counter Claimants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

USDC No. 5:01-CV-45-BrN

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Appellant Bill Libbey appeals from the district court decision finding that he was not permitted

to bring suit to recover money he claims is owed by Appellees John and Lucille Ridges because such-2-

suit is barred by Miss Code Ann. § 73-59-9, and from the judgment awarded to the Ridges in t he

amount of $51,999.92 on their counter claim. Libbey asserts that: (1) the district court erred in

finding that § 73-59-9 bars a suit by a contractor who received a state license to perform residential

construction or improvement after the performance of the work; (2) the district court erred in finding

that § 73-59-9 bars suit by a contractor who has obtained all local licenses and permits to perform

t he work; (3) the Ridges cannot assert § 73-59-9 as a defense because they paid claims under t he

co nt ract and because they did not raise it in their pleadings; (4) §73-59-9 violates the Commerce

Clause, Due Process and the Eighth Amendment; (5) Libbey is entitled to recover under a theory of

quantum meruit or unjust enrichment because these theories are not based on the contract; (6) the

district court erred in granting judgment for the Libbeys on their counterclaim that Libbey had

overcharged them for labor and material.

Libbey does not offer authority in support of claim two, three, and six. He thus waives these

claims by failing to adequately brief them. S ee United States v. Thames, 214 F.3d 608, 611 n.3 (5th

Cir. 2003).

Libbey argues that he is entitled to reco ver under a theory of quantum meruit or unjust

enrichment because these theories are not based on the contract. Before the district court, however,

he claimed only that he was entitled to recover the value of the labor and materials under the theory

of quantum meruit or unjust enrichment. Although the district court previously ruled that § 73-59-9

barred Libbey from presenting these equitable claims, in his motion for reconsideration Libbey still

did not include the argument that these theories are not barred by § 73-59-9 because they are not

based on the contract. Thus, Libbey did not present this argument to the district court and has

waived the argument on appeal. S ee C.A.T. Indus. Disposal Inc., v. Brow ning Ferris, 884 F.2d 209,1 The Supreme Court subsequently found this interpretation rendered the foreign corporati ons

statute unconstitutional as it violated the Commerce Clause. A llenberg Cotton Co., Inc. v. Pittman,

419 U.S. 20 (1974). However, the Court did not question the validity of the interpretation of the

foreign corporati ons statute. As explained in this opinion, the Commerce Clause is not an issue for

MCA § 73-59-9.

-3- 210-211 n.3 (5th Cir. 1989).

We review Libbey’s first claim that the district court erred in interpreting § 73-59-9 to bar him

from bringing suit when he obtained a license after performing the work at issue d e novo. See

F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir. 1998) (“We review a district court’s interpretation of

a state statue under the de novo standard o f review, and we interpret the state statute the way we

believe the state Supreme Court would

. . .”). Sect io n 73-59-9 is similar to a former Mississippi

corporate law which applied to foreign corporations, Miss. Code Ann. § 73-3-247 (1972) (repealed)

(“foreign corporati on statute”). The Mississippi Supreme Court interpreted the foreign corporations

statute to require a license at the time the cause of action accrued t o bring a cause of action in its

courts. S ee Pittman v. Allenberg Cotton Co., 276 So.2d 678, 681 (Miss. 1973). 1 This suggests that

§ 73-59-9, which is similarly worded requires a license at the time the cause of action accrued as well.

Moreover, in 1988, the legislature amended the foreign corporation statute to provide that foreign

corporati ons could not maintain a suit in Mississippi court “ until it obtains a certificate of authority.”

Miss. Code Ann. 79-4-15.02(a) (emphasis added). As section 73-59-9 was approved in 1995 after

the above statute was amended, and the legislature did not use the explicit language above to allow

contractors to bring suit in a Mississippi court after obtaining a certificate of authority, the legislature

must not have intended to provide for that right. The district court did not err in finding that Libbey

was barred from bringing a suit even though he obtained a license subsequent to performing the work.

Libbey also claims that § 73-59- 9 vio lat es t he Commerce Clause. Libbey provides no-4-

evidence of interstate activity. All of t he work and contracting at issue took place in the state of

Mississippi. Accordingly, the Commerce Clause does not apply. Cf. Allenberg Cotton Co. Inc. v.

Pittman, 419 U.S. 2 0, 33-34 (“. . .refusal to honor and enforce contracts m ade for i nterstate or

foreign commerce is repugnant to commerce clause.”) (emphasis added).

Libbey further contends that §73-59-9 violates the due process clause of th e Fourteenth

Amendment because the due process clause prohibits the imposition of excessive or arbitrary

punishments on tortfeasors. Libbey is not a tortfeasor, and his argument is nonsensical. Libbey also

contends that § 73-59-9 violates the Eighth Amendment prohibition on cruel and unusual punishment.

Libbey has not been convicted of a crime, thus this argument fails. S ee Palermo v. Rorex

, 806 F.2d

1266, 1272 (5th Cir. 1987).

AFFIRMED.