IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60182

Summary Calendar 

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

 Plaintiffs - Appellants 

v. 

BANCORPSOUTH BANK, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Southern District of Mississippi 

USDC No. 3:14-CV-964

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit 

Judges. 

PER CURIAM:*

Plaintiffs-Appellants Edwards Family Partnership, L.P. and Beher 

Holdings Trust (the “Edwards Entities”) filed suit against Defendant-Appellee 

BancorpSouth Bank (the “Bank”) alleging breach of contract, negligence, 

 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2017

Lyle W. Cayce

Clerk

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No. 17-60182

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breach of fiduciary duties, and fraudulent concealment. The Bank moved for 

summary judgment, which the district court granted. We AFFIRM. 

I. 

Baltimore physician Dr. Charles Edwards, acting through various 

companies he controlled, including the Edwards Entities, loaned substantial 

sums of money to Community Home Financial Services, Inc. (“CHFS”). CHFS, 

which is not a party to this lawsuit, was in the business of servicing second 

mortgage loans and held deposit accounts with the Bank, including the 

disputed account ending in -3644. With respect to account -3644, the Bank

entered into a 2003 Blocked Account Agreement (“BAA”)1 with CHFS and its 

previous lender, Roy Al Finance and Loan Company (“Roy Al”). The BAA

allegedly tasked the Bank with restricting the way CHFS could transfer 

deposited funds.2 The Edwards Entities were not a party to this agreement. 

 

1 A BAA is a tripartite agreement between a borrower, a lender, and a bank that allows a 

secured party to create and perfect a security interest in a debtor’s deposit account. Recognized under 

Article 9 of the Uniform Commercial Code, BAAs vary depending on the particular needs of the 

borrowers and lenders.

2 The Edwards Entities assert that two provisions of the BAA are particularly relevant to the 

instant litigation. First, in paragraph six, the Bank agreed that

The Lender [Roy Al] shall have the full and exclusive interest and control of and the 

irrevocable right, power and authority to demand, collect, withdraw, receipt for or sue 

for all amounts due, to become due and payable under each Blocked Account and, in 

the Lender’s sole discretion, to take any other action, including the transfer of any 

Blocked Account to the Lender’s own name, which the Lender deems necessary or 

appropriate to preserve or protect the security interests of the Lender, for the benefit 

of the Lender, in any Blocked Account.

Second, under paragraph seven,

The Bank [BancorpSouth] or the Borrower [CHFS], as applicable, further agree[d] that 

(subject to the provision of Section 6) at all times it will make distributions from each 

Blocked Account only to the Concentration Account, for the benefit of the Lender in 

accordance with Section 3 hereof or as specifically otherwise directed by the Lender in 

writing.

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In 2006, Rainbow Group, Ltd. (“Rainbow”), another entity controlled by 

Dr. Edwards, financed the payoff of CHFS’s debt to Roy Al and became CHFS’s 

lender for additional advances under a Loan and Security Agreement. Roy Al 

executed an agreement purporting to “assign” to Rainbow “its right, title and 

interest in” the BAA related to bank account -3644, although the Bank contests 

the validity of this assignment. When Rainbow became the lender, it brought 

Dr. Edwards and the Edwards Entities into the picture. The Edwards Entities 

contend that, because of the way certain interests were shared and transferred 

from Rainbow to them, they may enforce the 2003 BAA against the Bank even 

though they were not an original party to the agreement. 

In 2007, CHFS began deviating from the BAA by making transfers out 

of account -3644 to a number of bank accounts other than the “Concentration 

Account” specifically identified in the BAA. Nevertheless, Dr. Edwards 

approved this conduct because the transfers were made to the Edwards 

Entities or to legitimate CHFS accounts, and because CHFS always paid down 

the loan. In 2010, however, CHFS ceased making payments. Consequently, 

in 2011, Dr. Edwards asked CHFS to “reinstate” the BAA and “make

arrangements for all CHFS loan funds to be deposited . . . for the sole credit of 

[the Edwards Entities].” 

By 2012, CHFS owed the Edwards Entities approximately $30,000,000, 

and CHFS had fallen far behind in its payments. The Edwards Entities made 

demand on CHFS to cure the defaults, and litigation between the parties began 

shortly thereafter. CHFS subsequently filed for bankruptcy protection and 

became a debtor in possession. 

II.

In 2014, the Edwards Entities filed suit against the Bank in federal 

district court, alleging (1) breach of contract(s), (2) negligence in breaching its 

duties of good faith and ordinary care under the contract(s), (3) breach of the

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fiduciary duties imposed by the contract(s), and (4) fraudulent concealment of 

breach. In response, the Bank filed three motions for summary judgment. 

Relevant here is the second motion, wherein the Bank advanced three 

dispositive legal theories: abandonment/waiver, statute of limitations, and 

mitigation.3 

The district court held that the Edwards Entities abandoned/waived any 

right they may have had to enforce the BAA and denied the other two defenses 

as moot. According to the court, assuming arguendo that the BAA gave the 

Edwards Entities a “known right . . . whereby [the Bank] would monitor and 

prohibit unapproved -3644 transfers to accounts other than the Concentration 

Account,” the Bank “establish[ed] beyond peradventure” that the Edwards 

Entities “had sufficient information to be on notice that the Bank was deviating 

from its contractual obligation to monitor and prohibit certain -3644 transfers” 

and “failed to insist on this right or acted inconsistently with it.” Edwards 

Family P’ship, L.P. v. BancorpSouth Bank, No. 3:14CV964, 2017 WL 1732709, 

at *5 (S.D. Miss. Feb. 21, 2017) (internal quotation marks omitted); see also 

Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1112 

(Miss. 2007) (citations omitted). Thus, because the Edwards Entities 

“acquiesced to a sustained deviation from their contractual rights,” they 

abandoned their right to enforce the contract, and summary judgment was 

appropriate. Edwards, 2017 WL 1732709 at *1.

On appeal, the Edwards Entities assert that the district court’s grant of 

summary judgment was improper. They argue, inter alia, that: (1) their claims 

are not barred by the statute of limitations due to the continuing violation 

doctrine; (2) the district court “refused to give weight to evidence” suggesting 

 

3 Because the Edwards Entities’ second summary judgment motion was ultimately granted, 

the district court denied the remaining motions as moot.

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that Dr. Edwards was not on sufficient notice of the contract deviations; (3) 

they pled facts supporting that the deviations were not sufficiently material to 

support abandonment; and (4) the district court erroneously “fail[ed] to give 

any consideration to the contractual provisions for termination.” 

III. 

“We review a district court’s grant of summary judgment de novo, 

applying the same standards as the district court.” Antoine v. First Student, 

Inc., 713 F.3d 824, 830 (5th Cir. 2013). 

After considering the parties’ arguments as briefed on appeal, and after 

reviewing the record, the applicable law, and the district court’s judgment and 

reasoning, we AFFIRM the district court’s judgment as to the Bank’s second 

summary judgment motion and adopt its analysis in full. 

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