### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 60683 Summary Calendar

EDWARDS FAMILY PARTNERSHIP, L.P.; BEHER HOLDINGS TRUST, LIMITED , Plaintiffs

– Appellees ,

versus
WILLIAM D. DICKSON , Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Mississippi

Before REAVLEY , SMITH , and HAYNES , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
William Dickson appeals a summary judgment that he is liable for nearly $26 million under certain guaranty contracts. We find no error and affirm

.
I.
In 2010, Edwards Family Partnership, L.P. ( the “ Par tnership”), and United States Court of Appeals Fifth Circuit 

### FILED April 29, 2016 Lyle W. Cayce Clerk Case: 15-60683 Document: 00513486795 Page: 1 Date Filed: 04/29/2016No. 15

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2 Beher Holdings Trust, Ltd. (“B eher ” ) (sometimes referred to jointly as the “Lenders”) , loaned Community Home Financial Services (“C ommunity ”) $16
million

— the Partnership $4 million and B eher $12 million

. Dickson

— C ommunity’s founder, president, and CEO

— signed the identical loan agree

ments on behalf of C ommunity and as a personal guarantor. C om munity also executed notes to secure its obligation s to the Partnership and Beher, re spec
tively , set to mature on August 1, 2013, and Dickso n signed th em on behalf of C ommunity and as a personal guarantor.

D ickson executed contemporaneous, independent , respective guaranties in favor of the Lenders ; by each guaranty, Dickson “unconditional ly and abso

lutely guarantee[d] [] the due and punctu al payment and performance when due of the principal of the Note and the interest thereon . . . .” He accepted lia bility that would be “primary and direct and not conditional or contingent upon the enforceability of any obligation, the solvency of [C omm unity ] . . . , [or] any obligation or circumstance whi ch might otherwise constitute a legal or equitable discharge or defense of a surety or guaranty .

. . .” He also assured
the Lenders that they would not need to “make any demand” upon or “exhaust [their] remedies against” C ommunity , any collateral, or other guarantor before recovering from him

. The guaranty contracts included other language worthy of reproduction here : The obligations of [Dickson] hereunder shall not in any way be affected by any action taken or not taken by [ the Lenders ], which action or in

action is hereby consented and agreed to by [Dickson], or by the par tial or complete un enforceability or invalidity of . . . the value, genu ineness, validity or enforceability of the Collate ral or any of the Guaran teed Obligations. [ 1 ]

1 The term “ Guaranteed Obligations ” referred to the sums advanced under the loan agreements and covered by the notes. C ommunity use d the sums to purchase consumer

- loan portfolios, which served as “Collateral” for the loan and notes. “ Lender ” referred to the Part

nership and Beher

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3 . . . [Dickson] hereby waives . . . all defenses with respect to . . . any other action taken by Lender in reliance hereon . . . it being the intention hereof that [Dickson] shall remain liable as a principal until the full amount of all Guaranteed Obligations shall have been indefeasibly paid in full in cash and performed and satisfied . . . in full . . . and the Loan Agreement terminated, notwithstanding any act, omission or anything else which might otherwis e operate as a legal or equitable discharge of [Dickson]

. [Dickson] acknowledges and agrees that his obligations as Guaran

tor shall not be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, r elease or limitation of the liability of [C ommunity ] or any other guarantor of the Guaranteed Obligations or any other Person or his or their re spec
tive estates in bankruptcy resulting from the operation of any present or future provision of the bankrupt cy laws or other similar statute, or from the decision of any court

.

. . . [Dickson] hereby waives and agrees not to assert against [ the Lenders ] any rights which a guarantor or surety could exercise.

. . . [Dickson] agrees that his obligations hereunder are irrevocable, joint and several, and independent of the obligation of [C ommunity ] or any other guarantor of the Guaranteed Obligations . . . . ( Emphasis added.)

Dickson testified that C ommunity had made p ayments until October
2011 but defaulted by failing to pay thereafter

. The Lenders demanded that Community cure the defa ults; neither C ommunity nor Dickson cured but
instead sued the Lenders under theories ranging from breach of contract to
conversion ; th e Lenders counterclaimed against C ommunity for judgment on
the loan transac tions and notes and against Dick son personally for judgment on the guaranty contracts. Shortly after the Lenders counterclaimed, C om
munity filed for bank ruptcy, which automatic ally stayed all other pro c eed i ngs against it. Case: 15-60683 Document: 00513486795 Page: 3 Date Filed: 04/29/2016No. 15

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4 The Lenders moved to sever their claims against Dickson under the

guar an ties. Shortly thereafter, C ommunity and Dickson filed an adversary complaint in the bankruptcy proceeding, contesting the “extent and validity” of C ommunity’s obligations to the Lenders

. The court granted the Lenders’
motion to sever, allowing their claims against Dickson to proceed because Dick

son personally was not in bankruptcy and thus was not protected by the stay

. T he notes matured and remained unpaid , so o n October 11, 2013, the Lenders moved for partial summary judgment as to Dickson’s liability as guar
antor . The court granted summary judgment and ordered the parties to file affidavits establishing the extent of Dickson’s liability , after which the court
concluded that Dickson owe d $25,777,169 ($6,427,978 to the Partnership and $19,349,191 to Beher ) , with interest continuing to accrue

.
II. Dickson avers primarily that summary judgment on his guarantor lia

bility was premature because, in the bankruptcy proceedings, he and C om
munity were challenging the extent and validity of the underlying obligations. Under Mississippi law , 2 guaranty contracts are subject to the same rules of
construction that apply to other contracts. Bank of McLain v. Pascagoula Nat’l
Bank , 117 So. 124 , 126 (Miss. 1928). Dickson’s theory carries some intuitive force because Mississippi defines a “guaran ty” as “a collateral undertaking by one person to answer for the payment of a debt or the performance of some contract or duty in case of the default of another person who is liable for such payment or performance in the first instance.” Powell v. Sowell , 145 So. 2d 168, 171 (Miss. 1962). Also, “[i]f the principal underlying obligation is

2 The relevant documents expressly adopt Mississippi law, and, in any event, Mis sis

sippi law would apply to this diversity action based on a contract. Leonard v. Nationwide Mut. Ins. Co. , 499 F.3d 419, 429 (5th Cir. 2007). Case: 15-60683 Document: 00513486795 Page: 4 Date Filed: 04/29/2016No. 15

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5 extinguished, generally the guarantor’s obligation is also extinguished.”
Woods

- Tucker Leasing Corp. of Ga. v. Kellum , 641 F.2d 210, 213 (5th Cir.
Unit A Mar. 1981). F rom this, Dickson reasons persuasively that his guar an
tor liability is entirely derivative of C ommunity’s obligation, which could be
dis charged in the bankruptcy proceeding. Dickson posits that if Community’s obligation fall s away, so must his.
Thoug h colorable , Dickson’ s argument ignores the unambigu ous lan

guage of the guar anty contracts, 3 u nder which Dickson ’s liability i s “indepen

dent of the obligations of [C ommun ity ]” and “primary and direct and not con

di tional or contingent upon the enforce a bility of any obligation.” Dickson agreed that the Lenders need not exhaust their remedies against C ommunity or any other entity. He expressly waived any and all defenses to enforcement

. Finally, his personal guarantees are not affected by the “unenf orceability or invalidity” o f the notes or loans, any bank ruptcy proceedings, any limitation on C ommunity ’s obligations, or “the deci sion of any court.”

In sum , Dickson personally guaranteed the Lenders that he would sat

isfy the obligations represented by the promissory notes no matter what

. 4 He does not allege that the guaranty contracts are ambiguous, unenforceable , or

3 Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc. , 753 So. 2d 1077, 1087 (Miss. 2000) (“When a contract is unambiguous, determining its meaning is a question of law for the court to decide, and the contract must be enforced as w ritten.”).

4 See, e.g. , United States v. Little Joe Trawlers, Inc. , 776 F.2d 1249, 125 3

– 5 4 (5th Cir. 1985) (applying Texas law) (“ Even if Texas law required a guarantor to receive notice of intent to accelerate, the guaranty contract in this ca se was so broad that Guarantors should be required to make good on their guarantee even in the absence of such notice . . . . We emphasize first that the rights of guarantors must be determined from the language of the contract

. . . . In other words, Gu arantors, in effect, agreed to be bound by the guaranty instrument even if they were presented with a legal out . . . . Guarantors, in effect, said in the guaranty instrument, ‘ No problem. We’ll pay anyway. ’ This type of guaranty contract pro vision has been given effect in other jurisdictions, Black v. O’Haver , 567 F.2d 361 (10th Cir. 1977)

. . . , and we see no reason to refuse to give it effect here.” (some citations omitted) ). Case: 15-60683 Document: 00513486795 Page: 5 Date Filed: 04/29/2016No. 15

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6 invalid but only that h e cannot be liable as a guarantor until the Lenders show that Community is liable. 5 That might be a sensible provision to include in a guaranty, but it was not included here, and under Mississippi law, “ [t] he most basic principle of contract law is that contracts must be interpreted by objec

tive, not subjective standards. A court must effect a determination of the lan

guage used, not the ascertainment of some possible but unexpressed intent of the parties.” 6 We enforce the unambiguous lan guage of the guaranty contracts, Ronald Adams Contractor , 753 So. 2d at 1087, which requires that Dickson ful fill the obligations under the notes regard less of any outcome of the bank

ruptcy p roceedings or challenges to the underlying obligation.

That con clusion does not end the matter , because the Lenders have the burden to show Dickson is liable under the guaranty contracts. See EAC Credit Corp. v. King , 507 F.2d 1232, 1236 (5th Cir. 1975). They must show that (1) Dick son signed the guaranty contracts ; (2) those contracts encompass Com

munity’s obligations under the promissory notes and loan agreements ; (3) they
are the current holders and owners of the notes ; (4) the notes are in default ; and (5) the conditions (if any) of Dickson’s liability

— as lai d out in the guaranty
contracts

— have been met. See id. ; NCNB Tex. Na t’l Bank v. Johnson , 11 F.3d 1260, 1264 (5th Cir. 1994)

. The Lenders presented evidence sufficient to establish Dickson’s liabil ity as guarantor . They attached copies of the loan agreements, the notes, and the

5 In his reply brief, Dickson claims that some defenses cannot be waived. Whatever the m erits of th at contention , it is waived because he raised it for the first time in his reply brief

. See H ardman v. Colvin , No. 15

- 30449, 2016 U.S. App. LEXIS 6576, at *23 (5th Cir. Apr. 11, 2016 ) (noting that “we ordinarily do no t consider claims raised for the first time in a reply brief” (citation and internal quotation marks omitted))

. Moreover, Dickson pr offers no such defenses

.
6 Lehman

- Roberts Co. v. State Highway Comm’n , 673 So. 2d 742, 743 (Miss. 1996) (quot ing Simmon s v. Bank of Miss. , 593 So. 2d 40, 42

– 43 (Miss. 1992)). Case: 15-60683 Document: 00513486795 Page: 6 Date Filed: 04/29/2016No. 15

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7 guaranty contract s , each of which Dickson signed on behalf of C ommunity and as guarantor. The guarantie s specifically make reference to the notes and loan agreements. The record revealed that the Lenders are the current holders and owners of the notes

. Dickson testified that C ommunity defaulted on the note s by failing to pay after October 2011, and the evidence showed that the notes remained unpaid when they matured on August 1, 2013. Finally, the guar anty contracts reveal no conditions on Dickson’s liability save C ommuni ty’s default
on the notes, which the Lenders proved

. Dickson offers no evidence whatsoever in response, claim ing only that the bankruptcy proceeding may result in the invalidity of the underlying obligation. Thus, the Lenders met their burden to recover on the guarantie s

.

I II

. Dickson challenges the summary judgment on the extent of his guaran
tor liability. After finding Dickson liable under the guaranties, the court ordered the parties to file competing affidavits on the extent of his liability.
The court concluded tha t the Lenders’ affidavit fairly and accu rately re flected Dickson’s liability

. The Lenders presented an affidavit from Martha Borg, the companies’ bookkeeper. Borg averred that she was responsible for reviewing all of C om
m u nity’s financial reports and f or calculating the principal

- and

- interest bal

ances on its respective promissory notes , so she was familiar with Dickson’s obligations under the guaranty contracts

. She calculated his liability based on a “Borrowing Base Certificate Form” provided by C ommunity and Dickson in October 2011 and on an August 2010 agreement regarding the amount due as of July 31, 2010 , and she outlined her calculations and steps in a spreadsheet attached to her affidavit

. Dickson filed a competing affidavit that contended that Borg “vastly Case: 15-60683 Document: 00513486795 Page: 7 Date Filed: 04/29/2016No. 15

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8 overstates the amounts that could possibly be deemed due.” Dickson also claimed he lacked sufficient information to contest Borg’s affidavit because , “through no fault of [his] own , ” 7 he could not conduct discovery. He posit ed that Borg misrepresented certain sums borrowed by C ommunity , that she
lacked the qualification s and ability to conduct an accurate accounting, and that she failed to account for at least two repayments made by C ommunity

. 8 The combined errors, Dickson maintains, le d to a $1.2 million overestimation of his liability. He offers no documentary evidence or records to support th o se assertions.
Dickson did, however, support his affidavit with an equally conclus ional affidavit from Robert Cunningham, a certified public accountant hired by C om
munity’s bankruptcy estate to render professional accounting services. Cun

ningham concurred in Dickson’s conclusion that Borg’s affidavit overstated
Dick son’s liability by $1.2 million but provided no records or docu ments in support.
Dickson has failed to present sufficient evidence to survive summary judgment on the amount of his obligation under the guaranty contracts. He admits that he lacked sufficient information to dispute Borg’s claims, but he
did not move for addit ional time, under Federal Rule of Civil Procedure 56(d) , 9 to allow more discovery. Instead, he alleged (without any supporting documentation) , only that C ommunity did not default on the obliga tions, that

7 Dickson was incarcerated.

8 Dickson alleged that Borg failed to account for two repayments made in 2006 and 2007. Because Borg based her affidavit on amounts the parties agreed Community and Dick

son owed as of 2010, these allegations are irrelevant.

9 “When Facts Are Unavailable t o the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: . . . (2) allow time to obtain affidavits or declarations or to take discovery

. . . .” F ED

. R. C IV

. P. 56(d). Case: 15-60683 Document: 00513486795 Page: 8 Date Filed: 04/29/2016No. 15

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9 Borg made errors, and that Borg was unqualified to calculate his guarantor liability

. Cunningham’s affidavit , which contained only another set of allega

tions that Borg had failed accurately to calculate C ommunity’s and Dick son’s obligations , is insufficient to preclude summary judgment

. See Travelers I ns. Co. v. Liljeberg Enters., Inc. , 7 F.3d 1203, 1207 (5th Cir. 1993)

. Even supported by Cunningham’s identical aver ments, Dick son’s affidavit amounts only to “[c]on clu sional alleg ations and . . . un substantiated assertions , ” which “ do not adequately substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v. Sedgwick James of Wa sh ington , 276 F.3d 754, 759 (5th Cir. 2002).

AFFIRMED. Case: 15-60683 Document: 00513486795 Page: 9 Date Filed: 04/29/2016