[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16142

________________________ D.C. Docket No s . 1:12

- cv - 20150

- KAM ; 10

- 20941

- AJC

In Re: BISCAYNE PARK, LLC, Debtor.

_____________________________________ TERESA CARDENAS, Plaintiff

- Appellant,

versus MADISON REALTY CAPITAL LP, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (October 28, 2013) Case: 12-16142 Date Filed: 10/28/2013 Page: 1 of 162 Before HULL and MARTIN, Circuit Judges, and BOWEN, ∗ District Judge. MARTIN, Circuit Judge: Madison Realty Cap ital, LP (Madison) bought substantially all of the assets of Biscayne Park, LLC (Biscayne) as part of a bankruptcy proceeding. Madison argues the Sale Order entered by the Bankruptcy Court included a law suit brought by Biscayne against Wal

- Mart before the bankruptcy filing. Teresa Cardenas, the majority shareholder of Biscayne Park, LLC (Biscayne), disputes that the Wal

Mart cause of action was properly a part of the Sale Order. Ms. Cardenas b rings this appeal challenging the Bankruptcy Court order af firmed by the District Court , which included the Wal

- Mart cause of action as a part of the Sale Order

. Upon a careful review of the record, and with the benefit of oral argument, we affirm the rulings of both courts

. I. In November 2006, Biscayne got a on e - year , $8,150,000.00 , m ortgage with Madison to secure the purchase of a sixteen acre tract . Biscayne hoped to re

- sell the property “to a big box retailer (for a sum in excess of twenty million dollars) due to its size and favorable location.” To this end , Biscayne and Wal

- Mart entered into a purchase agreement in March 2007. Biscayne P ark, LLC v. Wal

Mart Stores E. , LP , 34 So. 3d 24, 25 (Fla. 3d DCA 2010). However, the purchase

∗ Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 12-16142 Date Filed: 10/28/2013 Page: 2 of 163 agreement allowed Wal

- Mart to install wells in order to test the groundwa ter at the site, and after doing so, Wal

- Mart backed out of the deal. Id. Biscayne then sought and found a new potential buyer, and during negotiations agreed to allow them to test the groundwater using the wells installed by Wal

- Mart. Id. When Wal

- Ma rt learned of this plan they sought to stop it, because the company “became concerned about its potential liability resulting from this use of the wells that it had previously installed.” Id. Wal

- Mart got a temporary injunction in state court that allowe d it to enter the property and seal the wells. Id. at 26. T he state court also required Wal

- Mart to post a $230,000.00 bond. Id. Meanwhile, Biscayne remained unable to re

- sell the property, and began to have trouble paying back the loan. On account of its inability to pay off the loans in full , Biscayne paid an extension fee of $41,000 in October 2007 , and then another such fee in October 2008 . The 2008 extension fee was nearly three times the amount paid the year before . After Biscayne’s failure to make certain tax payments and an installment due in May 2009, Madison began foreclosure proceedings in Miami

- Dade County Circuit Court. In April 2010, Biscayne filed a voluntary petition for relief under C hapter 11 of the Ba nkruptcy code. Between the beginning of the foreclosure proceedings and the filing of the bankruptcy petition, a Florida appellate court reversed and remanded the decision

Case: 12-16142 Date Filed: 10/28/2013 Page: 3 of 164 granting Wal

- Mart the injunction that permitted the sealing of the wells

. Id. at 27

. In setting aside the injunction, the Florida appeals court said “because the wells on Biscayne’s property were destroyed following the entry of an improper injunction, on remand Biscayne can proceed against Wal

- Mart’s posted bond on its claim for damage s.” Id. (citations omitted). After this ruling of the Florida appeals court, and pursuant to Federal Rule of Bankruptcy Procedure 9027, Biscayne filed a N otice of R emoval, bringing the Wal

- Mart action into the Bankruptcy Court . The removed case consisted of three c ounts brought by Biscayne in a c ounterclaim to Wal

- Mart’s complaint: (1) Declaratory Judgment; (2) Conversion; and (3) Trespass. The Notice of R emoval st ated in part: “Upon removal of the claim or cause of action this proceeding is c ore; or, if non

- core, [Biscayne] consents to entry of final orders or judgment by the bankruptcy judge.” Then in August 2010 , t he Bankruptcy Court entered a Cash Collateral Order, granting Madison a first priority lien on “[a]ll of the real and personal p roperty of [Biscayne] of any description whatsoever, wherever located and whe never arising or acquired .” Biscayne did not object to the Cash Collateral Order. In October 2010, the Bankruptcy Court entered a Bid Procedures Order, and again, Biscayne did n ot object. The Bid Procedures Order set certain procedures for the sale of “substantially all of the assets of” Biscayne.

Case: 12-16142 Date Filed: 10/28/2013 Page: 4 of 165 A fter a hearing, the Bankruptcy Court found Madison’s bid was the highest and best, and entered a Sale Order for assets described in exhibits to that Order. These included “[a]ll causes of actions and judgments pursuant thereto relating to the Premises,” “[a]ll contract rights, causes of actions, claims, [and] demands of [Biscayne],” and “the right, in the name and on behalf of [Biscay ne] to appear in and defend any action or proceeding brought wit h respect to the Premises .” In addition to listing what was included, the Sale Order also noted what was not, expressly ex cluding “the $230,000 supersedeas bond posted by Wal

- Mart in Miami

- Da de County Circuit Court under Case Number 08

- 67361 CA 22.” Again, Biscayne offered no objection to this Order. As part of the Sale Order, the Bankruptcy Court retained jurisdiction “for the purpose of: (1) determining the validity, enforceability, or pr iority of any ‘Claim’ (as that term is defined in the Sale Order); (2) enforcing the Sale Order; and (3) determining any dispu tes under

. . . the Sale Order.” After the sale , Madison filed a motion in the Bankruptcy Court seeking a ruling that the “Adversary Proceeding,” namely the counterclaim by Biscayne against Wal

- Mart, “was included in the sale of [Bisc ayne]’s assets to Madison .” At a hearing on this motion, Ms. Cardenas argued that the Sale Order did not transfer the Wal

- Mart cause of action because the Sale Order’s “causes of action” language “doesn’t talk about tort claims. . . . If you read this, all causes of action

Case: 12-16142 Date Filed: 10/28/2013 Page: 5 of 166 relating to the premises, does not necessarily sell a tort cause of action against Wal

- Mart that’s independent of the land itself.” II. Ms. Cardenas moved to dismiss the bankruptcy. In her moti on to dismiss, Ms. Cardenas argu ed that the Wal

- Mart cause of action “has been included in the ‘sale of assets’ in a confusing manner which was not in fact intended or understood by th e shareholders of [Biscayne].” On October 7, 2011, the Bankruptcy Court issued the order that is the subject of this appeal. T he Bankruptcy Court f ou nd that “Madison had a lien on the Wal

- Mart Cause Of Action under both the Cash Collateral Order and the Pr epetition Loan Documents, and purchased the Wal

- Mart Cause Of Action via its credi t bid on that Collateral at the Sale Hearing an d pursuant to the Sale Order.” The Bankruptcy Court also granted the m otion to d ismiss the b ankruptcy and dismissed the case with prejudice. Ms. Cardenas appealed the Bankruptcy Court’s Order to the U

. S

. District Court for the Southern District of Florida. After the case was fully briefed in the District Court, Biscayne filed a Motion to Join in the Appeal and to Adopt the Brie fs of the Appellant, which the District Court granted the following day. Ultimately the District Court affirmed the Bankrupt cy Court’s Order, rejecting four arguments raised by Ms. Cardenas.

Case: 12-16142 Date Filed: 10/28/2013 Page: 6 of 167 First, the District Court determined that the Wal

- Mart action wa s included in the Sale Order even if not explicitly referenced by adversary number because “[t]he Sale of Assets explicitly provided that ‘All contract rights, causes of action, claims, [and] demands of [Biscayne]’ were included in the sale from [Biscayne] to [Madison].” Second, the District Court found that “the Bankruptcy Court correctly distinguished the bond from causes of action associated with it.” Third, the District Court rejected the notion that the Bankruptcy Court should have held an evidentiar y hearing on whether the Sale Order included the Wal

- Mart cause of action. Fourth , the District Court found that Ms. Cardenas had waived her argument that the Wal

- Mart cause of action could not be assigned as a matter of law “since that issue was never ar gued before the Bankruptcy Court.” The District Court acknowledged that Ms. Cardenas argued at the Bankruptcy Court that the sale of assets only allowed for contract causes of action, and not tort causes of action. “But [Ms. Cardenas] never argued before the Bankruptcy Court that tort causes of action are unassignable as a matter of law.” Her appeal to this Court followed. As in the District Court, Ms. Cardenas, not Biscayne, originally filed the appeal to this Court. And similar to what happened in the District Court, after Ms. Cardenas filed her brief in this Court, Biscayne filed a Motion to Join in the

Case: 12-16142 Date Filed: 10/28/2013 Page: 7 of 168 Appeal and to Adopt the Briefs of the Appellant. Initially, this Court denied Biscayne’s motion, but later vacated that decision and granted the moti on to join

. 1 III. For bankruptcy cases, this C ourt functions as a second court of review , and thus independently examines the factual a nd legal determinations made by the B ankruptcy C ourt and employs the same standards of review as the D istrict C ourt. In re Optical Technologies, Inc. , 425 F.3d 1294, 1299

– 300 (11th Cir. 2005). G enerally we review legal the conclusions of the Bankruptcy Court and District Court de novo , and review findings of fact for clear error. Id. When reviewing a Bankruptcy Court’s interpretation of the effect of its own order, this Court wil l defer to that interpretation unless the Bankruptcy Court clearly abused its discretion. Id. A. Ms. Cardenas raises two issues in this appeal. First, she argues that the bond and cause of act ion are inextricably linked, and thus the Bankruptcy Court and District Court erred in finding that the cause of action was included in the Sale Order when the bond was explicitly excluded. Second, she argues that the District

1 The briefs for appellant that we consider were filed by Ms. Cardenas. Thus, despite Biscayne’s joining of the appeal, we refer to the arguments as hers. Also, b ecause Biscayne has now joined the appeal, Madison’s standing argument, raised in its opposition brief before we reached our final decision, is moot.

Case: 12-16142 Date Filed: 10/28/2013 Page: 8 of 169 Court erred in finding that she waived her argument that because the Wal

- Mart cause of action sounds in tort it could not be transferr ed as a matter of Florida law. The plain meaning of the Sale Order ’s language governs its inte rpretation. Belize Telecom, Ltd. v. Belize , 528 F.3 d 1 298, 1307 (11th Cir. 2008). When language used is unambiguous, this Court gives that language the meaning it clearly expresses. See Storfer v. Guarantee Trust Life Ins. Co. , 666 F.3d 1277, 1279 (11th Cir. 2012) (per curiam). This Court “may not go beyond the four corners of the document to look for additional evidence of the drafters’ intentions.” Norfolk S. Corp. v. Chevron, U.S.A., Inc. , 371 F.3d 1285, 1290 (11 th Cir. 2004)

. Therefore, a post

- hoc statement of what a party intended cannot trump an agreement that is sufficiently clear on its face. See Ellinger v. United States , 4 7 0 F.3d 1 325 , 1 338 (1 1 th Cir. 200 6 ). In this case, Biscayne and Madison both agreed, without objection, to the Sale Order. That Sale Order stated, in part, that Madison bought “[a]ll contract rights, causes of action, claims, [and] demands of” Biscayne. There can be no genuine dispute that the surviving Wal

- Mart suit is a “claim” or “cause of action”: Bisca yne identified it as such in its n otice of removal. Whether the Wal

- Mart cause of action is included as one of the actions als o leaves no genuine dispute: all

means “without exception.” Th us, th e conclusion that the Sale Order included the Wal

- Mart cause of action hardly requires the “l egal gymnastics” that Ms. Cardenas

Case: 12-16142 Date Filed: 10/28/2013 Page: 9 of 1610 suggests are necessary. And Ms. Cardenas’s claims that she and others “believed” they were keeping the cause of action , or that it was never Biscayne’s “intent . . . to sell its cause of action,” are not legally sufficie nt. See Ellinger , 4 7 0 F.3d at 1 338

. Because we conclude that the Sale Order included the Wal

- Mart cause of action , Ms. Cardenas has not demonstrated any abuse of discretion by the Bankruptcy Court or District Court on this point. See In re Optical Technologies , 425 F.3d at 1299

– 300. Th e fact that the Wal

- Mart bond, as opposed to the cause of action, was carved out of the Sale Order also supports our conclusion . By expressly excluding the bond, as well as a specific trailer home, the parties indica ted that they knew how to carve something out of the Sale Order. T he cause of action was not excluded from the Sale Order . O ther items were . Thus, the logical presumption, especially in the context of the broad “all . . . causes of action” language in t he Sale Order, is that the cause of action was part of the Sale Order. See In re Celotex Corp. , 487 F.3d 1320, 1334 (11th Cir. 2007) (“[W]hen certain matters are mentioned in a contract, other similar matters not mentioned were intended to be

ex cluded.” ( internal quotation mark omitted) ). This Court finds no legal support for Ms. Cardenas ’s argument that “[t]here is no distinction, in the context of this case, between the Bond and the claim on the Bond.” She states: “Simply put, the Bond and the claim a gainst Wal

- Mart are

Case: 12-16142 Date Filed: 10/28/2013 Page: 10 of 1611 legally inseparable.” This claim is not supported by any citation to a statute or case. She states: “Legally, the Bond and a claim on the Bond, from the Debtor’s prospective [sic] are inseparable.” Again, this claim is not supported by any citation to a statute or case. 2 The only case Ms. Cardenas cite s for support on this point is In re Maxko Petroleum, LLC , 425 B.R. 852, 876 (Bankr. S.D. Fla. 2010); after citing the case, she states in parentheses: “Buyer beware prevails at bankruptcy court auction s .” It appears that Ms. Cardenas is referring to the
statement from In re Maxko that “[t]he successful bidder at a bankruptcy sale is bound by the offer as stated and embodied in an approval order.” Id. at 875

– 76. But on this poi nt, there is no argument. The Sale Order included the cause of action, and Madison, Biscayne, and Ms. Cardenas are all bound by that language. 3 B. Ms. Cardenas’s waiver argument contains two parts . First, she argues that she properly presented the issue regarding the assignability of tort causes of action under Florida law, and thus the determination by the District Court that she waived the issue is error. Second, she argues that the waiver doc trine should not apply because substantial justice is at st ake, the proper resolution is beyond any doubt,

2 Ms. Cardenas’s reply brief suffers from a similar deficiency. The “Severability Issue” sect ion cites no statute or case. 3 By the sam e token, the Sale Order did not cover the Bond contract, and we express no opinion about potential rights, if any, under the bond.

Case: 12-16142 Date Filed: 10/28/2013 Page: 11 of 1612 and her waiver issue presents significant questions of general impact and great public concern. T o support her argument that she properly raised the tort assignment issue, Ms. Cardenas cites to the following oral representation by her counsel at a bankruptcy hearing: You don’t get a security interest in a tort cause of action. That’s why it is[] limited to contract causes of action. They didn’t have a lien on it. They are not entitled to a lien on it. We c an brief this issue or we can have evidence on this issue. Because the

--- The bankruptcy Judge then interjected and stated he did not find evidence to be necessary, but invited the parties t o “prepare proposed orders .

. . in order to put this up for an analysis and determination.” Ms. Cardenas does not point to any thing else in the Bankruptcy Court record regarding the assignability of tort claims under Florida law aside from this one comment , and this Court found none

. T his one comment wa s insufficient to preserve the issue as a matter of law. “Ordinarily an appellate court does not give consideration to issues not raised below.” In re Lett , 632 F.3d 1216, 1226 (11th Cir. 2011) (quoting Hormel v. Helvering , 312 U.S. 552 , 556, 61 S. Ct. 719, 721 (1941)) . This is particularly true in the bankruptcy context , “ as bankruptcy cases are to be tried in bankruptcy court.” Id. (quotation marks and alteration omitted). Here, one comment that does not clearly raise the issue was insufficient to preserve the issue on appeal.

Case: 12-16142 Date Filed: 10/28/2013 Page: 12 of 1613 Ms. Cardenas argues that she should not have to “state[] verbatim below” the argument she now makes about transferability in order to preserve it. But

n either the District Court, nor this Court, has ever suggested there is any such requirement. Instead the requirement, not met here by Ms. Cardenas, is that the issue must be clearly raised in the first place. As this Court has stated before, “[w]e cannot allow [a party] to argue a different case from the case she presented to the district court.” Access Now, Inc. v. Sw. Airlines Co. , 385 F.3d 1324, 1331 (11th Cir. 2004) (internal quotation mark omitted) . Nor, for that matter, can this Court allow a party to argue a different case from the case she presented to the Bankruptcy Court. Where a party does not raise an issue below, this Court evaluates it under the plain error rule

. Th e plain error rule allows consideration of an issue not raised in th e District C ourt (1) if it involves a pure question of law, and if refusal to consider it would result in a clear miscarriage of justice ; (2) where the appellant raises an object ion to an order which he had no opportunity to raise at the District C ourt lev el ; (3) where the interest of substantial justice is at stake ; (4) where the proper resolution is beyond any doubt ; or (5) if th e issue presents significant questions of general impact or of great public concern. In re Lett , 632 F.3d at 1227 n.22

Case: 12-16142 Date Filed: 10/28/2013 Page: 13 of 1614 (citations omitted) . As detailed below, however, Ms. Carden as’s arguments reviewed under the plain error standard do not prevail

. 4 First , t he Bankruptcy Court found the Wal

- Mart cause of action to be a contract claim, stating it “involves an alleged brea ch of contract and so could certainly be described as a ‘contract cause of action.’” And Ms. Cardenas failed to respond to Madison’s argument that this is a mixed question of law and fact insofar

as this Court would not simply have to decide the transferability of a tort claim under Florida law, but whether the claim is a tort action at all. In any event, allowing Ms. Cardenas’s waiver of this issue to stand would not res ult in a miscarriage of justice. A miscarriage of justice requires “a decis ion or outcome of a legal proceeding that is prejudicial or inconsistent with the substantial rights of a party.” In re Lett , 632 F.3d at 1224 (emphasis added) (quotation marks and alterations omitted). Here, Ms. Cardenas only offers speculation about ho w the Bankruptcy Court’s order prejudices her pecuniary interests. By the same reasoning , it does not appear that under these facts substa ntial justice is at stake. Ms. Cardenas argu es that substantial justice “certainly is at stake” because Madison is “ a lready overpaid.” But this Court has generally limited the substantial justice exception to “the vindication of fundamental

4 Ms. Cardenas only notes four of the five scenarios in her brief, omitting the scenario in which a party may prevail if th ey raise an objection to an O rder that they could not raise below. As discussed above, Ms. Cardenas had an opportunity to raise her objection below, so even if she had addressed this scenario in her discussion of waiver, it would have been rejected for th e reasons already discussed

.

Case: 12-16142 Date Filed: 10/28/2013 Page: 14 of 1615 constitutional rights.” See In re Daikin Miami Overseas, Inc. , 868 F.2d 1201, 1207 (11t h Cir. 1989)

. Ms. Cardenas’s argument that Madison is overpaid does not raise an issue of fundamental constitutional rights

. Neither is it clear that the resolution of this issue is beyond any doubt. Although Ms. Cardenas argues that “[t]ort claims cannot be assigned under Florida law,” the two cases she cites reach a more limited conclusion. The court in Notarian v. Plantation AMC Jeep, Inc. , 567 So. 2d 1034, 1035 (Fla. 4th DCA 1990) found only that “personal injury claims,” in that case intentional infliction of

emo tion al distress, are not assignable . And while the court in Florida Patient’s Compensation Fund v. St. Paul Fire & Marine Insurance Co. , 535 So. 2d 335, 338 (Fla. 4th DCA 1988), did find “personal injury and malpractice claims are not assignable,” even th at conclusion has been altered by a later case, Cowan Liebowitz & Latman, P.C. v. Kaplan , 902 So. 2d 755, 757 (Fla. 2005), which “recede[d] from the broad dicta . . . purporting to prohibit the assignment of all legal malpractice claims.” See also Wachovi a Ins. Servs., Inc. v. Toomey , 994 So. 2d 980, 987 (Fla. 2008) (finding an insured’s breach of fiduciary duty claim against an insurance broker may be assigned). Based on this Court’s review of the relevant caselaw, we reject the notion that the resolutio n is “beyond any doubt

. ” Lastly, this case does not involve a significant question of general impact or of great public concern. This exception is generally reserved for cases regarding a

Case: 12-16142 Date Filed: 10/28/2013 Page: 15 of 1616 policy with national application. See Dean Witter Reynolds, Inc. v. Fernandez , 741 F.2d 355, 360

– 61 (11th Cir. 1984) (finding the exception appropriate in a case i nvolving a national policy of denying Cuban nationals access to money to finance violent acts abroad ). In contrast, t his case turns on specific language in a Sale Order between two private parties . It is the type of case we have found inappropriate for this exception

. S ee, e.g. , Access Now , 385 F.3d at 1334

– 35 (declining to find the exception appropriate “because our ruling would necessarily be based on facts specific” to the case ) ; see also Polo Ralph Lauren, L.P. v. Tropical Shipping & Const r . Co. , 215 F.3d 1217, 1224 (11th Cir. 2000) (stating that even “ matters of great moment ” should first be presented to the District Court). IV. For these reasons, the rulings of the District Court and Bankruptcy Court are AFFIRMED

.

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