United States Court of Appeals

for the Fifth Circuit

No. 20-60310

Cascade Capital Group, L.L.C., 

Plaintiff—Appellant,

versus

Livingston Holdings, L.L.C.; Chestnut Developers, 

L.L.C.; David Landrum; Michael L. Sharpe, also known 

as Mike Sharpe, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:17-CV-952

Before Jolly, Stewart, and Oldham, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Cascade Capital Group, L.L.C. (“Cascade”) 

brought suit against Defendants-Appellees Livingston Holdings, L.L.C., 

Chestnut Developers, L.L.C., David Landrum, and Michael Sharpe 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 14, 2020

Lyle W. Cayce

Clerk

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(“Borrowers”) due to their default on a Promissory Note and subsequent 

Forbearance Agreement. Following a bench trial, the district court 

determined that Borrowers breached the parties’ enforceable contract, but 

that Cascade had also breached its fiduciary duty to Livingston, Chestnut, 

and Sharpe (“Livingston/Chestnut/Sharpe”). Cascade filed a motion to 

alter or amend the judgment, which the district court denied. Cascade 

appeals the district court’s final judgment. We AFFIRM.

I. Facts & Procedural History

In 2008, Borrowers began a project to re-develop the “Old Town” of 

Livingston, Mississippi. In 2011, Borrowers secured a loan from BankPlus to 

fund part of the project. Chestnut, who had acquired the land, provided 

BankPlus with a promissory note in the amount of $978,287.17, secured by a 

Deed of Trust. Livingston later sought help recapitalizing the project. In July 

2012, it engaged the consulting services of Cascade, whose sole member is 

Mark Calvert.

When Borrowers faced default on their BankPlus loan, Calvert offered 

them a new loan, with a principal and interest total of $951,147, despite the 

conflict of interest posed by Calvert serving as both a lender and a financial 

advisor. Borrowers executed the Promissory Note, which was set to mature 

in March 2016. In April 2016, Borrowers executed a Forbearance Agreement. 

The Agreement required a $750,000 payment in December 2016, and 

purported to release Calvert and Cascade from any claims Borrowers may 

have against them. The Agreement was amended in July of 2016 to extend 

deadlines for other payments. Borrowers failed to make the December 

payment, placing them in default. Cascade filed a lawsuit in December 2017, 

seeking appointment of a receiver to take possession of Borrowers’ property, 

and a joint and several judgment for the principal and interest due, as well as 

attorney’s fees and collection costs. 

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All Borrowers except for Landrum filed counterclaims against 

Cascade. In February 2019, the court granted Cascade judgment on the 

pleadings as to Landrum. The same day, the court granted in part and denied 

in part Cascade’s motion for summary judgment. The court determined that 

Borrowers had breached their contract, but that there was a genuine issue of 

fact as to whether Cascade had breached its fiduciary duty. The court, in so 

concluding, rejected four arguments made by Cascade: (1) that the 

counterclaims were time-barred, (2) that Borrowers had waived their ability 

to make these claims by signing the exculpation clause, (3) that Borrowers 

waived their claims when signing the Forbearance Agreement, and (4) that 

Borrowers were estopped from repudiating the contracts, as they had 

benefited from them.

In its final judgment, the court determined that Cascade owed a 

fiduciary duty to Livingston/Chestnut/Sharpe and had breached it. The 

court stated that the most “egregious” breach was when Calvert took 

unsecured debt (including his unpaid professional fees) and collateralized it. 

This further encumbered the land that previously only secured the BankPlus 

loan, to Calvert’s benefit and his clients’ detriment. The court voided the 

collateralization in order to put the parties in the position they would have 

occupied but for the breach, and found Livingston/Chestnut/Sharpe jointly 

and severally liable for $424,329.55, which was the original payoff balance on 

the BankPlus note. The court further determined that the land now only 

secured that sum. 

Cascade now appeals, arguing that Livingston/Chestnut/Sharpe’s 

claims were time-barred and, in the alternative, that they had waived said 

claims.

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II. Standard of Review

In considering a final judgment from trial without a jury under Federal 

Rule of Civil Procedure 52, we review the district court’s findings of fact for 

clear error, and we review conclusions of law de novo. Chandler v. City of 

Dallas, 958 F.2d 85, 89 (5th Cir. 1992) (per curiam).

III. Discussion

(A) Statute of Limitations

Cascade argues that any breach of fiduciary duty occurred with the 

execution of the Promissory Note in 2014, and therefore 

Livingston/Chestnut/Sharpe’s counterclaims fall outside of Mississippi’s 

three-year statute of limitations. Miss. Code Ann. § 15–1–49. Cascade 

argues that the district court thus improperly applied equitable tolling, citing 

numerous cases for the proposition that equitable tolling is unavailable in 

circumstances like these. We disagree.

The district court did not apply equitable tolling in this case, instead 

determining that Cascade’s wrongdoing continued beyond the execution of 

the Note in 2014, and that therefore the counterclaim was filed within the 

statute of limitations. Under Stevens v. Lake, “continuing or repeated injuries 

can give rise to liability even if they persist beyond the limitations period for 

the initial injury.” 615 So.2d 1177, 1183 (Miss. 1993) (citing Hendrix v. City of 

Yazoo City, 911 F.2d 1102, 1103 (5th Cir. 1990)). Stevens is clear that while 

the principle does not apply “where harm reverberates from a single, onetime act,” it is applicable “in situations where the defendant commits 

repeated acts of wrongful conduct.” Id. The court stated that they did not 

find the date of the Note’s execution to be the date of the last instance of

tortious conduct, stating that “Calvert repeatedly breached his fiduciary duty

. . . the formation of the Note was just the first noted instance.” 

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Cascade contends that because there is a common causal origin of the 

breach (the execution of the Note), every wrongful action since reverberated 

from that origin. Cascade characterizes Calvert’s subsequent actions 

following the Note’s execution as a continuing harm, not repeated acts of 

wrongful conduct. This is inaccurate. The district court noted repeated, 

discrete acts in which Calvert breached his fiduciary duty, including an 

example in 2017 where Calvert instructed a bank to refuse to release the 

property unless Calvert was paid in full, causing Livingston’s negotiations 

with a prospective buyer to fall through. Actions like this cannot be described 

as merely a reverberating harm from an initial act of wrongdoing, but instead 

reflect “repeated acts of wrongful conduct.” Stevens, 615 So.2d at 1183. 1

The district court did not err in concluding that 

Livingston/Chestnut/Sharpe’s counterclaims were not time-barred.

(B) Waiver or Forfeiture

Cascade argues that Livingston/Chestnut/Sharpe’s execution of the 

Forbearance Agreement and subsequent Amendment waived their 

counterclaims. In support of this proposition, it cites to Holland v. Peoples 

Bank & Trust Co., 3 So.3d 94 (Miss. 2008). Holland held that a plaintiff’s 

renewal of a defaulted note constituted waiver of all claims against the bank, 

1 Cascade also argues that the district court improperly applied the “continuous 

representation rule.” It cites to a case where the court rejected a rule that the statute of 

limitations begins to run on the last day of representation by a lawyer, rather than when the 

malpractice occurred. Channel v. Loyacono, 954 So.2d 415, 420–21 (Miss. 2007). This case 

is wholly inapplicable, because in that case there was no evidence showing the lawyers 

committed any negligent or fraudulent acts after the malpractice in question. Id. at 420. 

The district court did not determine that the statute of limitations began running on the 

last day of representation by Cascade, but rather stated that there were ongoing, repeated 

acts of breach that occurred within the three years before Livingston/Chestnut/Sharpe 

brought counterclaims. 

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including claims for breach of fiduciary duty. Id. at 103. However, the 

fiduciary duty in Holland was allegedly created by an escrow agreement that 

was part of the plaintiff and defendant’s ongoing creditor/debtor 

relationship, and it is therefore distinguishable. Id. at 97. As the district court 

correctly points out, “[t]his fiduciary relationship derives from the separate 

consulting services agreement, which was not ‘remedied’ or otherwise 

contractually by the Agreement[.]”We agree that there is no basis for holding

that execution of a Forbearance Agreement can waive claims for breach of 

fiduciary duty unrelated to the debtor/creditor relationship.

Cascade also argues that the Forbearance Agreement’s exculpatory 

clause waives counterclaims for breach of fiduciary duty. The clause provides 

that Borrowers:

release, acquit and forever discharge [Cascade], its predecessors in 

interest and all [Cascade’s] past and present officers, directors, 

attorneys, affiliates, employees and agents, of and from any and all 

claims, demands, liabilities, indebtedness, breaches of contract, 

breaches of duty, or of any relationship, acts, omissions, misfeasance,

malfeasance, causes of action, defenses, offsets, debts, sums of 

money, accounts, compensation, contracts, controversies, promises, 

damages, costs, losses and expenses, of every type, kind, nature, 

description or character, whether known or unknown, suspected or

unsuspected, liquidated or unliquidated, each as though fully set forth 

herein at length (each, a “Released Claim” and collectively, the 

“Released Claims”), that Borrowers now have or may acquire.

Cascade argues that the district court incorrectly determined that

Livingston/Chestnut/Sharpe’s signing of this indemnification agreement 

did not waive their counterclaims for breach of fiduciary duty. It notes that in 

Smith Barney, Inc. v. Henry, the Mississippi Supreme Court determined that 

the phrase “[a]ny controversy arising out of or relating to” referenced a 

claimed breach of fiduciary duty. 775 So.2d 722, 726 (Miss. 2001). Cascade

also relies on Russell v. Performance Toyota, Inc., 826 So.2d 719, 723 (Miss. 

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2002) (concluding that arbitration clause language referring to “any 

controversy or claim arising out of or relating to the vehicle which is the 

subject of the contract” included claims for breach of fiduciary duty in those 

circumstances). We agree with the district court that this exculpatory clause 

failed to waive Livingston/Chestnut/Sharpe’s counterclaims.

Both cases cited by Cascade are inapplicable, as they discuss the 

applicability of arbitration agreements, not the viability of exculpation 

clauses. This is a meaningful distinction, because “[t]he law does not look 

with favor on contracts intended to exculpate a party from the liability of his 

or her own negligence . . . .” Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 

1999). While they are sometimes enforceable, “such agreements are subject 

to close judicial scrutiny and are not upheld unless the intention of the parties 

is expressed in clear and unmistakable language.” Id. Further, “[t]he 

wording of an exculpatory agreement should express as clearly and precisely 

as possible the extent to which a party intends to be absolved from liability.” 

Id. (emphasis in original).

Here, the exculpatory clause fails because it does not clearly explain 

the extent to which Cascade intends to be absolved from liability. The clause 

and the Forbearance Agreement generally do not acknowledge the consulting 

relationship between Cascade and Borrowers. Its disclaimer of liability for 

“breaches of duty” did not specify breaches of fiduciary duty, which may 

have alerted Borrowers that the clause was intended to cover potential claims 

Borrowers may have with respect to other aspects of their relationship with 

Cascade. Borrowers could reasonably have read this clause as only applying 

to claims relating to lending, as the Forbearance Agreement related only to 

Borrowers’ creditor/debtor relationship with Cascade. It lacks the requisite 

specificity expected from a successful disclaimer of liability, and therefore is 

not an effective waiver of Livingston/Chestnut/Sharpe’s counterclaims.

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Finally, Cascade argues that Borrowers forfeited their counterclaim 

by failing to exercise their rights at the earliest practicable opportunity. 

However, Cascade did not make this argument in lower court briefing. 

Cascade argued to the district court a theory of “quasi-estoppel,” where one 

is prohibited from gaining a benefit under a contract and then avoiding the 

contract’s obligations. This new argument is distinct because while 

Cascade’s quasi-estoppel argument concerns obligations of a contract, this 

new theory involves rights against a fiduciary. Our court will generally not 

consider issues raised for the first time on appeal. See Martco Ltd. P’ship v. 

Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009).

The district court did not err in its determination that 

Livingston/Chestnut/Sharpe’s counterclaims were not waived or forfeited.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s final 

judgment. 

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