### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20435

AMERICAN GENERAL LIFE INSURANCE COMPANY, Plaintiff - Appellee

v. SHELDON CARTER BRYAN, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-1630

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: * Sheldon Carter Bryan (“Bryan”) appeals from a summary judgment order determining a breach of a contract with the American General Li f e I n s u r a nce Company (“American General”). For the following reasons, we AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 14, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20435 Document: 00512340642 Page: 1 Date Filed: 08/14/2013No. 12-20435 FACTS AND PROCEEDINGS American General is a life insurance company that sells its policies through age n t s , w h o are paid a commission on sales. Bryan entered into an agency contract (the “Agency Agreement”) w ith American General in 2003. On the same day, Bryan executed an assignment (“the A ssignment”) that purported to transfer “all rights, p rivileges, duties, and obligations” under the assigno r ’s “Agent Contract” to IMG Capital M anag e m e nt (“IMG Cap.”). Neither the Agency Agreement nor the Assignment were countersigned by American General, though both documents were scanned into American G eneral’s computer system a little under a month after they were executed by Bryan. This litigation arises from the sale of several life insurance policies in 2006 (the “Altman Policies”) f o r which American G eneral paid commissions. The Altman P o licies were marketed and sold by t wo s ub-agents working under Bryan’s jurisdiction. Bryan was a ccordingly entitled to an override commission from th e s a l e o f the Altman Policies. American General paid the majority of B r y a n’s commission arising from the Altman Policies in a s ingle che c k f o r $185,373.64. The c ommission check, which w as made out t o Bryan personally,

was sent to the offices of IMG Inc.—a separate legal e ntity from IMG Cap. 1—where it was endorsed b y IMG I nc. a nd plac e d in IMG I nc.’s bank account. Bryan, who has been CEO of IMG Inc. s ince at least 2006, is the only individual who has a uthority to withdraw funds from IMG Inc.’s bank account. The Altman Policies were eventually rescinded by American General. American General returned the paid premiums t o the in s u r e d , and sought

1 Bryan w as p res id ent of IM G Cap

. at the tim e the Agency Agreem ent and As s ignm ent w ere executed in 2003; Carte r B r y an ( Sheld on Bryan’s father) s ubs equently took over as Pres id ent of IM G Cap

. Carter Bryan is , at p res ent, the p res id ent and s ole sharehold er of IM G Cap

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repayment from Bryan for the commission paid on the policies, arguing Bryan was contractually bound under the Agency Agreement to repay the money. The district court gr an t e d s ummary judgment for American General, conclu d i n g t h at there were no genuine i ssues of material fact and that Bryan

was contractually obligated to repay the commissions. Bryan contended there

was no contractual relationship between the parties because h e assigned his rights and responsibilities under the A g e ncy Agreement to a nother party, thereby absolving him of any duty to repay the commissions. Moreover, Bryan argued t hat he n either knew o f, nor actually received, the disputed commissions.

STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Burge

v . P a rish of St. Tammany , 187 F.3d 452, 464 ( 5th Cir. 1999). S u m m a r y judgment is appropriate when “the pleadings, t he d i scovery and disclosure materials o n file, and a ny a ffidavits show that there i s no genuine issue as to any material fact and that the m ovant i s entitled t o judgment as a matter of law.” Pustejovsky v . Pl i v a, Inc. , 623 F .3d 271, 275-76 ( 5th C ir. 2010). No genuine issue o f fact exists if the record t aken as a whole c o u ld not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Rad i o Corp. , 475 U.S. 574, 587 (1986). We view t h e facts in the light m ost favorable t o the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). Nonetheless, t he non-moving party must do more than simply d eny the allegations raised by t he m o v i n g p a r ty. Donaghey v. Ocean Drilling & Exploration Co. , 974 F.2d 646, 649 (5th Cir. 1992). The non-moving party must come f

orward with com p e t ent evidence, such as affidavits or depositions, to butt ress h is claims. Id. We may affirm summary judgment on any basis raised below and supported by t he record. Q BE Ins. Co r

p . v. Brown & Mitchell, Inc. , 591 F.3d 439, 443 (5th Cir. 2009).

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DISCUSSION The threshold issue for a Texas b reach-of-contract case is determining whether there is a valid and enforceable contract between the parties. 2 See Parker Drilling Co. v. Romfor Supply Co

. , 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). A valid and enforceable contract exists if there is “(1) an offer, (2) a cceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the i n tent that it be mutual and binding.” Id. The summary judgment record c ontains c o pies of the Agency Agr e e m e nt b etween A merican General and B ryan. Americ a n G e n e r al s ub m itt e d evidence that Bryan executed the standard agreement, returned it to American Gene r a l , operated under its terms, a nd was paid commissions for his efforts. F u r t h er, Bryan c oncedes that the evidence i s “clear a nd indisputable” tha t h e entered into the Agency Agreement with American G eneral. We acc o rdingly agree with both parties that the Agency Agreement is valid and enforceable. Faced with clear record evidence on that point, Bryan instead focuses his challenge on appeal o n whom the Agency Agreement is p resently enforceable against. Bryan argues that the district c o urt erred wh e n it found (1) that he concluded multiple agency agreements with A m e r i c an General, including one that post-dated the A s s i g n m ent, and (2) t h e Assignment did not assign away Bryan’s liabilities un d e r th e c o ntr a c t because t he Assignment was unsigned, and therefore of no legal effect. In light of two concessions from American General,

we agree with Bryan that the district c ourt’s determination that the A ssignment was without effect was in error.

2 Paragrap h VII. Q of the Agency Agreem ent s pecif ies the ap p lication of Texas law

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B o th p arti e s h av e c l arif i e d o n a p p e a l—despite the confusing and disj o i nt e d presentation of fac t s b e l o w—that American General is pursuing its b reach of contract cl a i m o n the basis o f the Agency Agreement. We therefore examine whether the fact that the Assi gnment was u nsigned means that it was ineffective in discharging Bryan’s liabilities under the Agency Agreement. Here, too, appellate clarifications are dispositive. American G eneral’s brief—though it argues extensively that t h e Assignment was without legal effect—also concedes that “uncontroverted e vidence submitted by American General” establishes that “the Assignment d o e s n ot a ssign M r. Bryan’s commission for all purposes as alleged by Mr. Bryan, but instead a s s i g ned a specific agent c ode that American General provided to Mr. Bryan.” 3 Though the parties continue to disagree as to the breadth of the Assignment, in light of the record evidence that th e A ssignment had some legal e ffect, we do n ot believe that summary jud g m e nt can b e founded o n a determination that the A ssignment had no legal effect. We need n o t resolve the remaining disagreement between American General and Bryan as to the breadth of the Assignment because w e believe that the doctrine o f q u a si-estoppel, as American G eneral argued in the summary judgment p r oceedings below, bars Bryan from asserting that he transferred all liabilities and responsibilities under t he Agency Agreement to IMG Cap. Under Texas law, “[q]uasi-e s t o p p el precludes a party from asserting, to a nother’s disadvantage, a ri gh t i n c onsistent with a position previously taken.” Lopez v. Munoz, Hockema & Reed, L.L.P. , 22 S.W.3d 857, 864 (Tex. 2 000). “The doctrine applies when it would be unconscionable to allow a person to maintain a position

3 Am erican General as s igns its agents “a g e n t cod es ” that are unique id entif ying
num bers that an agent attaches to ins urance ap p lications subm itted by that agent. The agent cod es as s is t Am erican G eneral in p roces s ing com m is s ion p aym ents

. Agents can have m ultip le agent cod es f

rom Am erican G eneral. 5 Case: 12-20435 Document: 00512340642 Page: 5 Date Filed: 08/14/2013No. 12-20435

inconsistent w i t h one to which he acquiesced, or from which he a ccepted a benefit.” Id. Q uasi-estoppel can, in some circumstances, bar parties from raising certa i n defenses in breach-of-contract actions, see, e.g. , Eckland Consultants, Inc. v. Ryder, Stilwell Inc. , 176 S.W.3d 8 0, 87 (Tex. App.—Houston [1st D ist.] 2004, no pet.), and courts are allowed to l o ok past the parol evidence rule in determining whether a party should be estopped, id. at 88. All parties agree that the commission for the Altman Policies neither was sent to, nor ended up in, IMG Cap.’s bank a ccount. T he rec o r d evidence indicates that the commission was sent in Bryan’s n a m e t o the address American Gene r al had for I MG Inc., was endorsed by IMG Inc., and was deposited i n I M G Inc.’s bank account. American General presented evidence showing that Bryan, a s IMG Inc.’s CEO, was the only individual authorized to withdraw funds f

r o m the I MG Inc. account into which the commission was deposited. Moreover, American General p r esented evidence indicating that, from October 2004 to June 2006, IMG Inc. endorsed and d eposited 271 checks made payable to Bryan personally from a variety of insurers—including at least twenty from American G e n e r al—into the IMG Inc. bank account. The total value of the checks to Bryan from all insure r s exceeded 2.5 million dollars, and the value o f c hecks from American General to B ryan alone was measurable in the hundreds of thousands of dollars. B ry a n’s arguments agai n s t th e i nvo c ati o n o f qu a s i

- e s t o p p e l ar e u n av aili n g
. Bryan f i r st argues that h e is not IMG Inc., and IMG Inc. receiving the commission c heck for the Altman P olicies is not the s ame as Bryan receiving the commis s i o n c h eck. Bryan points here t o an affidavit from Bryan in t he record that (i) denies knowledge of, or ever having received, the check, and (ii) indicates that the A merican General check was sent to IMG Inc. a t the r e quest of someone other than Bryan to a n address provided to American General by someone other than Bryan. But Bryan has neither denied th a t h e w a s the only p e rson with

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authority to withdraw funds, nor provided a ny rebuttal to the e vid e n c e regarding the extremely large sums that were p ayable t o Bryan and handled in the same way as this check. Bryan’s mere s p e c u lation that other individuals may have had access to the funds in t he account, even when combined with his observation that cash withdrawals a re not the only w ay money is moved out of business bank accounts, does not constitute controverting evidence about such other individ u a l s o r other ways “money i s moved” from t his account. At the summary judgment s t a g e , t h e non-moving party “may not rest upon the mere alleg a tions or denials of his pleading,” b ut rather “must set forth specific facts showing that there is a genuine issue for trial.” Anderson , 477 U.S. at 248. Bryan finally argues that quasi-estoppel does not ap p ly b e c a u s e B ryan has

n e ver previously taken a position that h e had a contractual relations h i p w i t h American General, or that the Agency Agreement had not been assigned to IMG Cap. Bryan’s argument here neglects that Bryan is estopped not because of his arguments in litigation ( judicial estoppel), but rather the acceptance and retention o f funds that he received b ecause of a re l a t i onship that he is now attempting to persuade the courts did not exist. W e c o n c l u d e th e s u m mary judgment r ecord proves that Bryan received th e benefit of the commission on the Altman P olicies, even if he did not phy s i cally receive t he check that w as d eposited in IMG Inc

. ’ s a c c ount. Given Bryan’s acceptance o f hundreds o f thousands of dollars from American General, and the lack of any evidence in the r ecord that Bryan made any effort to send the funds to IMG Cap.—the e ntity he now alleges should have received that money in the firs t p l a c e

—w e believe that it would be unconscionable to allow Bryan to hide behind the assignment t o avoid liability on the Agency Agree ment when his behavior over a multiple-year period was flagrantly inconsistent w ith the legal arguments he now urges us to adopt on appeal. T he record is clear that Bryan

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has c o ntinuously received the benefits from his relationship with Am e r i can General; he can not now deny that that relationship exists. Having concluded that Bryan is b locked by quasi-estoppel from a sserting that he t r a n s ferred a ll liabilities and responsibilities under t he Agency Agreement to IMG Cap., we can a f f i r m the grant of summary judgment on American General’s b reach o f contract claim. The summary judg ment record establishes that (1) Bryan entered into a valid contract with American General with the Agency Agreement, (2) the A ssignment did not t r a n s fer away his liabilities and responsibilities under the Agency Agreement, and (3) he breached the Agency Agreement b y fai l i n g to r eturn the c ommissions after the policies were rescinded. CONCLUSION We AFFIRM the district court’s grant of summary judgment.

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