### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 15,

2004 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

_________________

___________ No. 03-11 169

_________________

___________ D. C. Docket No. 00-00195 CV-A AA-1 CLUB CAR, INC., Plaintiff-Counter Defendant-Appellee,

versus CLUB CAR (QUEBEC) IMPORT, INC., Defendant-Counter Claim ant-Appe llant, MARTIN MURPHY, Defenda nt-Appell ant, PIERRE CHAMPIGNY, EQUIPMENTS PIERRE CHAMPIGNY, LTD., Counter-D efendants

Appellee s, INGERSOLL RAND CO., LTD., Counter-D efendant.* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by

designation. 2

_________________

_________________

____ Appeal from the United States D istrict Court for the S outhern Di strict of Georgia

_________________

_________________

____ (March15, 2004) Before EDMOND SON, Chief Judge, BIRCH and FARRIS * , Circuit Ju dges. FARRIS, Circuit Judge: Club Car o f Quebec(CCQ) and its pre sident, Ma rtin Murphy , appeal

the judgm ent against

them on severa l claim s arising ou t of Club Ca

r Inc.’ s term

ination of CCQ as its d istribu tor of gol f carts. We affirm. Background Under a series of written distribution agreements, C CQ, a Quebec corporation, serv ed as the Q uebec distr ibutor of gol f carts m

anufactur ed by C lub Car, a Georgia corporation, from 1980 through 2000. In 1990 and 1991, CCQ president Martin Mur

phy exe cuted a pe rsonal guar anty to ensure pa

ym ent of CCQ’s debts. During the 1990's Club Car and CCQ agreed that Club Car could sell used carts in Q uebec, b ut that CCQwould have a right of first re fusal on thos e3

products. If CCQ declined t o purchase them, it would receive a

comm ission on each car t Club Car

sold to another buye r. Disagreem ents later arose w hen Club Car bega n selling use d carts c ontaining ne w parts t o a com petitor, Equipem

ents Pierre Champigny

(EPC). This arrangem

ent ended in 1997, but Club Car continu ed sellin g used cart s. In 1999, Club Car began charging CCQ a Quebec Provincial Sales Tax (QST) for its products with the stated intent of remitting the taxes to the Quebec Governm ent. For various re asons, Cl

ub Car del ayed p aying t

he taxes unt

il June of 2001. CCQ clai ms it suffered tax penalties as a result o f this del ay. In 2000, Club Car terminated its contract with CCQ and awarded the distributorship to EPC, whose president is Pierre Champigny . Later, Club Car filed suit to recover

more than $1.5 m

illion in pay

ments due from

CCQ and f

rom Murphy under the p ersonal gua

ranty . CCQ a

nd Murphy

filed three lengthy counter c laims against Cl ub Car ass erting, a

mong oth er claim s, breac h of contra ct, conspirac y to br each a co ntract, and conver sion arisin g out of the d istribution agreem ent, as w ell as bre ach of fi duciary duty, violations of

federal and state RICO laws, and frau d arising out of Clu b Car’s mishandli ng of the QST ta xes. CCQ later joined

EPC and Cham

pigny a s counterc laim defendant s, alleging4

tortious int erference with a business re lationship a

nd contrac t, and con spiracy to breach a con tract. On January 17, 2003, the trial court granted Club Car’ s motion for partial

summ ary j udgmen

t, dism issing CCQ ’s RIC O and fraud claim s, and its b reach of contract claim connecte d with the a

lleged used

cart agr eement. On Ja

nuary 31, EPC and Champign y moved to apply Quebec l aw to CCQ’s claims again st them. On Febru ary 3, CCQ moved to amend the pre trial order, agre eing to lim it its claim s against C lub Car to b reach of contract , conspiracy t o breach a contract , breach of fiduciar y duty , and prom

issory estoppel, and to lim

it its claims aga

inst Champigny and EPCto conspiracy to breach a contract and tortious interference with a business relationship and contract. On February 4, the trial court ac cepted CCQ’ s limi tation of c laims and grante d EPC and Cham pigny’ s request t o apply Quebec law. After a five-day trial, a jury awarde d Club Car

$1,557,360 (Canadia

n) on its claim s against C CQ and Mur phy. T he jury awarde d CCQ $100, 000 (Canad ian) on its counter

claim s against C lub Car, but nothing on i ts claim s against E PC and Champigny. The jury did no t award attor ney fees to eith er Club Car or CCQ. After t rial, th e trial c ourt grant ed Club Ca r’s m otion for j udgmen

t as a m atter of law and awarded Club Car att orney fees unde r the dist ributio n contract

.1 Martin Murphy joins in all of CCQ’s claims that would result in an offse t of the jury’s award to Club Car under his personal guara nty. 5 DISCUSSION 1. Dam ages Tes timony

. 1 CCQ challenges rulings excluding testimony on the alleged dam ages connected with its various counter claims. It first contends that the trial court abused its di scretion in striking the expert te stimon

y of it s accounta

nt, Pete r Rya

n, on lost profits under Daubert v. Merrell Dow Pharm., I nc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. E d. 2d 469 (19 93). W e review such rulings for abuse

of discretio n, Judd v. R odman , 105 F.3 d 1339, 1341 ( 11th Cir. 1997), and will reverse only if an erroneous ruling created a “ substantial prejudicial effect.” Piamba Cortes v. American Airlines, Inc. , 177 F.3 d 1272, 1305 ( 11th Cir. 1999) (citation s omitted). Expert te stimon

y is ad missib le if (1) the exper

t is qualifi ed to testif

y on the topic at iss ue, (2) the me thodology used by the exper t is suffic iently

reliable , and (3) the te stimon

y wil l assist the

trier of fact. ER 703; Quiet Tech. DC-8 v. Hurel-D ubois UK, Ltd. , 326 F.3d 1333, 1340-41 (11th Cir. 2003). To ensure that a proper f oundation is m

ade, the trial cour t must screen e xpert test

imony to determine if it i s relevant and reliab le. Daubert , 509 U.S. at 589. Expert6

testim ony m

ust be excl

uded if the

reasoning or me thodology underlying the opinion is scientifically invalid, or if the methodology cannot properly be applied to the facts

. Id . at 592. Ryan t estified t

hat CCQ’ s dama

ges in the f

orm of lost profit s exceede d $10 milli on. But, as the tri al court f ound, that e stima

te was ba sed on gross s ales and gross profi t figures. Ryan admit ted he had n ot factored in expens es CCQ w ould

normally inc ur in gener

ating incom

e and sale s. To re cover lost profit dam

ages in Georgia, “one m

ust show the probable gain with great specificity as well as expenses in curred in

realizing such prof

its. In sh ort, the gross amount minus expenses equals the amount of recovery. ” Shaw v. R uiz , 207 Ga. App. 299, 428 S.E. 2d 98, 103 (1 993) (cita tions omitted). Ryan failed to f ollow this r

ule. Th e trial court reasonably concluded his lost profit calculation was based on flawed methodolog y that was unaccep ted in the accounti ng community. See Daube rt , 509 U.S. at 593-94 ( degree to which exp erts in the field ac cept tech

nique rele vant to admissibili ty). The court did not abus e its disc retion in striking the testi mony. CCQ argues the Daubert objection was untimely

because it was not raised until tri al. A Daubert

objection not raised before trial may be rejected as untimely. Quiet Te ch. , 326 F.3 d at 1350. B ut a trial court has b road discr

etion in determ ining how to p erform

its gateke eper func tion, and no thing prohibi ts it from7

hearing a Daubert

motion durin g trial. See Goebel v . Denver and Rio G rande Western R.R. C

o ., 215 F. 3d 1083, 1087 ( 10th Cir. 2000)(tri al court m ay hold Daubert hearing “ when aske d to rule on a

motion in lim ine, on an

objecti on during trial, o r on a post- trial m

otion. . . .”); see also Ku mho Tire Co. v. Ca rmichael, 526 U.S. 137, 152, 1 19 S. Ct. 1167, 143 L . Ed. 2 d 238 (1999) ( “the trial j udge m ust have cons iderable l eeway” in determining whether exp ert testimony is rel iable). The trial court permitted extensive voir dire and cross exam ination, then heard lengthy argument on Ry an’s methods. The court adequately developed the record

necessar y to exercise sound

discretio n, and did no t err in holding the Daubert hearing during trial. CCQ argues the trial court’s ruling was based on im proper evi den ce, po in ti ng to th e at temp t b y EPC ’s c ou ns el t o s ub mit a n ex cer pt fro m a handbook on da

mage s. CCQ claim s this tainte d the court ’s ruling because the excerpt was n ot proper ly served on th e parties. Thi s content ion is wit hout merit. The excerpt was not “evidence” but legal authorit y in support of EPC’s argument. Moreover , the tri al court in dicated it had not eve n seen the e xcerpt w hen it m ade its rulin g. CCQ nex t compl ains that t he tri al cou rt con fused the ju ry in st riki ng Ryan ’s lost-prof it testim ony as f ollows:8

Memb ers of the

jury , with respect to M

r. Ry an’s te stimon

y as to damages, when he say s that he did not take int o considera

tion the expenses involved and merely used the gross amount, his opinion as to the loss on the Defendant’s c ounterclaim is s tricken. You arenot to consi der that. CCQ claims the instruction failed to distinguish between lost profit and other damages, thereby mislead ing the jury int o disrega rding all of Ryan’s testimony. Since CCQ failed to object to the instruction, reversal is required only if it can show plain error. Fed. R. Civ. P. 51; Ford ex re l. Estate of Ford v. Garcia , 289 F.3d 1283, 1287-88 (11t

h Cir. 200 2). Alt

hough not a m

odel of cla

rity, the inst ructi on di d refer to Ryan ’s conc lusi ons t hat fa iled to acc ount for CCQ ’s expenses . The instruc tion was no t so misleadin g as to clear ly prejudice CCQ. Ford , 289 F.3 d at 1288. Finally , the tri al court di d not com mit reversible

error in sustaining C lub Car’s objecti on to Ry an’s te stimon y on loss es CCQ allegedly suffere d from

Club Car’s handling of QST ta xes. CCQvice pres ident Anit a Murphy had already testified that CCQ incurred

more than $200,0 00 in fines a

nd expenses due to Club Car’s failure to rem

it QST to the Quebec Governm ent. Ryan’s testim ony was cumulative an d its excl usion was harmless. Piamba Cortes , 177 F.3d at 1305. 2. Jury I nstructions

.9

CCQ claims the

trial cour t abused its discretio n in the “ process a nd substance” of instructing the jury, focusing mainly on the relationship between Quebec l aw and its claim s. It first argue s that the t rial cour t’s “ untime ly” de cision to apply Quebec law to its claim s against EPC and Chamigny “spawned confusion”and prej udice. T his argument is wit

hout merit. To avoid unfai r surprise, a party m

ust give reasonable notice, through its pleadings or otherwise, of its inten

t to rely on foreign

law. F ed R. Civ . P. 44. 1; DP Av iation v. S miths Industries Aero. & Def. Sys ., 268 F.3d 829, 846 (9th Cir. 2001). EPC gave CCQ such notice

at least t wice, starting tw o weeks be fore tri al. More over, in g ranting EPC’ s request, the court d id not “ change” t

he law; i t simpl

y appli ed wellestablished choice-of-law principles to claims that CCQ, a Quebec party, had against o ther Quebec p arties. CCQ recei ved reason able noti ce. DP Av iation , 268 F.3d at 846

. Nor did the trial court err in denying CCQ’ s request to amend the pretrial order a se cond tim e so that it could rea ssert claims f

or defam ation and bad faith business negotiations under Quebec law. “[F]or pretrial procedures to continue as viable mechanisms of c ourt efficiency, appellate courts m ust exercise minima

l interfer ence wit h trial cou

rt discre tion in m atters suc h as the m odificati on of its [pretrial] orders.” Jacobs v. Agency Rent-A-Car, I nc. , 145 F.3 d 1430, 1432 ( 11th10

Cir. 1998) (quoting Hodges v. United States , 597 F.2d 1014, 1018 (5th Cir. 1979)). C CQ had ag

reed to dr op those claims be fore tri al in order to stream line its lengthy list of coun

ter clai ms. The cour

t did not abuse

its discre tion in ref

using to amend the pretri al order agai n after trial had begun

. We also find no rev ersib le erro r in th e tria l cou rt’s ref usal to gi ve CCQ’s proposed Quebec law instructions on its breach of fiduciary duty and conspiracy claim s against C lub Car. For the m ost part, the instruc tions CCQ proposed m erely added the f

ollowing sta

teme nts to the G eorgia ve rsion of the law: Every person has a duty to abide by the rules of conduct w

hich lie upon him , accor

ding to the c ircum stances, usage or la w, so as not to cause injury to a nother. Where he is endow ed with re ason and fails in his duty , he is responsible

for any injury he causes to another

person by

such fault and is liabl e to repar

ation for t he injur y, w hether it b e bodily , mor

al, or material in nature. This adde d little to t

he instruc tions given, which alr eady s tated that

Club Car had a legal duty to refra in from conspiring to breach i ts contrac ts, and a d uty to f ulfill its fiduciary obligations by using reasonable care in handling QST funds collected from CCQ. A ssuming

Quebec l aw applie d to the claims, any e rror in refusing to give CCQ’s proposed instructions is harmless since they w ould not have altered the thrus t of what the jury was told. See Carte r v. De cisionOne Corp ., 122 F. 3d 997, 100 5 (11th Ci r. 1997) (in structio nal error do es not requ ire reversal unless we2 CCQ also claims the court erroneously instructed the jury that “a ll tortious conduct by Club Car and Champigny. . . ha d to occur in the state of Georgia” f or the jury to awa

rd damages. The court gave no such instruction. I t did instruct the jury that punitive damag es could only be based upon conduct occurring in Geor gia. 11 are “left with a substantial and ineradicable doubt as to whether the jur y was properly guided in its delibera

tions.”) (quoting Johnson v. Bryant , 671 F.2 d 1276, 1280 (11th Cir. 1982)). CCQ also claims, w ith little analysis or citation to relevant authority, that the trial court gave

various fl awed Qu ebec law instructio ns. But CC Q fails t o show how, considere d as a whol e, the ins tructions m isstated th e law or

misle d the jury. Wilkinson v. Carnival Cruise Lines, Inc. , 920 F.2d 1560, 1569 (11th Cir. 1991). 2 Nor did the trial court violate Fed R. Civ. P. 51 by failing to hold a proper charge conference or allow CCQ sufficient tim e to review and object to proposed instruction s. Befo re closing argum ents, the

trial cour t held a hea

ring at wh ich all parties a rgued the instructions . Althoug h the court

abbrevia ted the hea

ring, it ga ve the parties an additional opportunity to object and propose new instructions after the jury was char ged. The proceedings were

consistent with Fed. R. Civ. P. 51.3 Under Ga . Code Ann . § 16-14- 4(a), G eorgia ’s RI CO statute :

[i]t is unlawful for any person, through a pattern of racketeering

activity or proceeds derived therefrom, to ac quire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any na tu re , i nc lu di ng mo ne y. 12 3. QST Cla ims CCQ ar gues that th e trial c ourt erre d in dismissing on sum mary judgm ent its state RI CO and fr

aud claim s connecte d with Club Car’s handling of the QST it collecte d. We

review summ

ary j udgmen

t rulings denovo, view ing all fac ts and reasonabl e inferences in the lig ht most favorab le to the n onmoving pa rty. Tullius v. Albri ght , 240 F.3d 1317, 1319 (11th Cir. 2001). Summ ary judgm ent is proper “if the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the aff

idavits, i f any, show that t here is no g enuine issue

as to any mate rial fac t and that th e moving party is entitle d to a judgm

ent as a m

atter of law.” Fed. R. Civ. P. 56(c). “If the recor d presents factual i ssues, the court m ust not decide them; it must deny the motion and proceed to trial.” Clemons v. Dougherty

County , 684 F.2d 1365, 1369 (11th Cir. 1982). To establi sh a patter n of racketee ring activ ity under Georg ia’s RICO statut e, CCQ needed to prove two rel ated predi cate acts th at violat ed state or federal law. Ga. Cod . Ann. § 16-14-3(8) , (9); Roth v. Connor , 235 Ga. App. 866, 510 S.E. 2d 550, 557 (1998). 3 CCQ alleged that Club Car comm itted mail fraud, which13

requires proof of a

specificintent to de fraud or d eceive. 18 U.S. C. § 1341; United States v. Hasner , 340 F.3d 1261, 1269 (11th Cir. 2003). CCQ’s com mon law fraud claim has a s imilar scienter element. Empire D istr. Inc . v. H ub Motors , 240 Ga. App. 568, 52 4 S.E.2d 264, 2 65 (1999 ). In support of summary

judgment, Club Car presented evidence that it began collectin g QST on the advice of its cust oms au ditor in the Spring of 1 999. Club Car’s accounta

nt explaine d the delay

in rem itting the ta

x by averring that : (1) shortly after C lub Car be gan collec ting QST , she wa s notified s he could not r emit the tax wi thout a Que

bec Provincial tax i dentifica tion num ber; (2) she was no t diligent in a

pplying f or the num

ber beca use she wa s overwor

ked and having personal pr

oblem s; (3) the Quebec g overnm ent rej ected a de fective a pplication submit ted in the F all of 2000; (4) she resubm itted a cor rected a pplication i

n December 2000; and (5) an identification num ber was issued to Club Car in May 2001. All

taxes we re paid in J

une 2001, be fore CCQfiled its c ounterclaim alleging fraud. In response , CCQ w as required to come forwa rd with “ specific facts showing tha

t there [ was] a

genuine issu e for tri al.” Fe d. R. Civ. P. 56( e). Ins tead, CCQ asserts only

that the de layed

paym ent raise d an inference of f raudulent intent, and refers to what it claims ar e invoices containing false tax numbers14

submitted by Clu b Car. But the delay was explai ned by Club Car’s af fidavits

. Moreover , CCQ do es not identify th e invoices that alleg edly c ontain fal se number s. Ther

e wereinvoices c ontaining a t ax num ber assoc iated wit

h the financin g entity for th e transacti on, which was listed as “buyer” on the invo ices. CCQ fa ils to show h ow listing t he tax num

ber of a c learly -identifi ed party evidences fraudule nt intent. At best, this is nothin g more than a scin

tilla of evidence an d is insu fficient to defeat summary judgment. See Anderson v . Liberty Lobby, I nc ., 477 U.S. 242, 2 49-52, 10 6 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). Contrary to CCQ’ s claim, the affidavit of Anita Murphy , which asserted that Club Car h ad falsif

ied tax num

bers and w as unauthor

ized to col lect QS T, does n ot establish a

question of fact as t o intent. T he trial c ourt correctly

disregar ded this averment as barred by

the hearsay rule because Murphy had attempted to relay what she claimed Quebec governm ent officials had told her. Inadmissible hearsay generally cann ot be cons idered on a motion for su mmary judgment. Macuba v. Deboer , 193 F.3d 13 16, 1322 (11th Cir. 1 999). CCQ also asserts t

hat sum mary judgm ent was im

properly granted be cause the trial court had erroneously denied CCQ’s re quest to depose certain Club Car employees on the QS T issue. CCQ fails to explain how the discovery rulings were

erroneous or how the wit nesses wou ld have su pported i ts claims. See Flanigan’s4 CCQ tests th e limits of F ed. R. App . P. 28(9) (A) thro ughout it s briefs. 15 Enterprise

s, Inc. v. Fult

on County , 242 F.3 d 976, 987 n. 16 (11th Cir . 2001) (party’s failure to ela

borate on or provide any citation of authority in support argum ent constit

utes waiv er) (ci tation om itted); see also Fed. R. App. P. 28(9)(A). 4 CCQ n ext con ten ds t hat the tri al co urt erre d in exc lud ing the tri al t est imon y of Lynda Cappadoccia of the Quebec governm ent on the QST issue. The trial court m ade no such r

uling. Ins tead, a magis trate den ied CCQ’ s pretria l request to take Cappadoccia’ s videotape d deposition f or trial, a ruling tha

t CCQ fa iled to appeal to the distr ict court. See Farrow v. West , 320 F.3 d 1235, 1248- 49 n.21 (11th Cir. 2003) (failure to appeal magistrate's nondispositive order to the district court precl udes part y from raising issu e on appeal to the circu it court). Finally, CCQ argues that the trial court a bused its discretion in excluding as hearsay Anita Murphy ’s testimony that Quebec tax officials “had learned” that Club Car u sed false

tax num bers and w as unauthor

ized to col lect QS T. The se were “out of court statem ents offered to prove the truth of the matter asserted.” Fed. R. Evid. 80 1(c). The trial c ourt prop erly excluded t hem. See United States v. Nations Bank of Fla. N.A. , 53 F.3d 1548, 1554 (11th Cir. 1995) (trial court has broad dis cretion in determining ad missibility of ev idence).16

4. Personal

Jurisdicti on: Murphy

. Martin Mur

phy ar gues that th e district

court lac ked personal jurisdi ction because he

is a resid ent of Que

bec witho ut suffici ent mi nimum contacts with Georgia. The Georgia long-arm statute provides for personal jurisdiction over a nonresiden

t defenda nt who “ [t]ra

nsacts any

business w ithin this sta

te.” G a. Code Ann. § 9- 10-91(1). The stat ute confe rs juris diction to the “maximu m extent permitted by due process.” SES Indus. , Inc. v. Inter trade Pack. Mach . Co. , 236 Ga. A pp. 418, 51 2 S.E. 2d 316, 318 ( 1999). D ue proces s require s that a def endant have sufficient minimum contact with the forum state to provide “ fair warning that a particular activity m ay subject him to the jurisdiction of a foreign sovereign.” Burger King Corp. v. Rudzewicz , 471 U. S. 462, 4 72, 105 S. Ct. 2174, 85 L. E d. 2d 528 (1985) ( citation om

itted). In deter

mining whether

sufficie nt minimum contacts e xist, we

look to whe ther: (1) the defen dant has ac ted so as to a vail himse lf of the l aw of the

forum state; (2 ) the claim is r

elated to t hose acts; and (3) the exercise of jurisdiction does not violate notions of fair play and substantial justice. SES Indus. , 512 S.E .2d at 318. A nonresident individual cannot be subject to personal jurisdiction based solely upon acts in Georg ia taken in his or her co rporate cap acity. Southern Electron ics Distrib. v. A nderson , 232 Ga. App. 64 8, 502 S.E.2d 2 57, 260 (1 998).17

Murphy’s contacts with Georgia w ent beyond his visits to the state as CCQ president. Murphy

engaged in negotiation s with Club Car for the underl

ying distribution

agreem ents as we ll as the pe rsonal guar anty. As the tr

ial court f ound, Murphy was more than a passive p articipan t in CCQ’s deali ngs in Geo rgia. As principal and primary shar eholder of CCQ, Murphy enj oyed the substantial financia l benefit f

rom t he distribut

ion agree ment, which he induced Club Car to enter by personall y guaranteeing C CQ’s d ebts. N otably , the distr ibutorship agreement and the personal guaranty contract, in effect for m any year s, provided for their enforce ment i

n the state

of Geor gia, under

Georgia law. T hese circum stances e stablish tha t Murphy acted to a

vail him self of G eorgia la w, the claim is related to those acts, and it was fa ir for Georgia to assert jurisdiction over him. See White House v. W inkler , 202 Ga. App. 60 3, 415 S. E. 2d 1 85 (1992 ). The trial court cor

rectly found that M

urphy h ad suffic ient minimum contacts with Georgia. 5. Attorney

Fee Aw ard-Validity of Person al Guara nty Finally , CCQ a

nd Murphy

challenge

rulings aw arding att orney fees to C lub Car and rejecting Murphy’ s claims that the personal guaranty contract w as unenforceable. Both issues arose in rulings on motions for judgment as a m atter of law e ntered af

ter the initial judgm

ent was e ntered an d the initial notice of5 Murphy’s cha llenge to personal jurisdiction is not similarly-ba rred because he raised the issue in a t least two

pretria l motions to d

ismiss. “The appea

l from a f inal judg ment dra ws in question all prior non-final orders and rulings which produce d the judgment.” Barfield v. Brierton , 883 F.2d 923, 930 (11th Cir. 1989). 18 appeal w as filed. In light of this, CCQand Murphy

were required to amen d their notice of a

ppeal to de signate the

rulings and amen ded judgm ent affe cted by

those rulings. F ed. R. App. P. 4(a)(4) (B)(ii) . They ame nded their notice, b ut failed to designat e the rulin gs and judg ment they now challe nge. Fed. R. App. P. 3(c) re quires a no tice of a ppeal to “ designate t

he judgm ent, order or p art thereof appealed from .” We have jur isdiction to review o nly thos e judgments or or ders speci fied–exp ressly or impliedl y–in the not ice of appea l. Pitney B owes, In c. v. M

estre , 701 F.2d 1365, 1374-75 (11th Cir. 1983). Where a notice of appeal specifies a particular judgment or ruling, w e infer that others are not part o f the appeal

. Id. The fai lure to des ignate thepost-trial rulings on attorney fees and the persona

l guaranty

preclude s CCQ and

Murphy from challengin g them

in this appe al. 5 AFFIRMED.