Crop Production Services, Inc. v. Layton

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 6, 2011
• Docket: 10-14429
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCT 6, 2011 No. 10-14429 JOHN LEY Non-Argument Calendar CLERK ________________________

D. C. Docket No. 1:09-cv-00401-WKW-SRW

CROP PRODUCTION SERVICES, INC., a Delaware corporation,

Plaintiff-Appellee,

versus

JANICE LAYTON, an individual, GREG LAYTON, an individual,

Defendants-Appellants.

________________________

Appeal from the United States District Court for the Middle District of Alabama _________________________

(October 6, 2011)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM: Janice Layton and Greg Layton appeal the district court’s final judgment

following a bench trial in favor of Crop Production Services, Inc. (CPS). The

Laytons assert (1) the district court erred by concluding Janice Layton’s Credit

Application and Agreement (Agreement) was effective for the credit extended to

her in 2008 and (2) the district court’s almost verbatim use of CPS’s findings of

fact and conclusions of law constitutes reversible error. After review, we affirm.1

I.

The Laytons contend the hand-written notation of “December 1, 2007” next

to the typewritten word “terms” on the first page of the Agreement serves as a

termination date, while CPS asserts the clause is part of the application and

represents the initial payment term. To interpret this clause, a court looks first to

the language of the Agreement, and then resolves any ambiguity using extrinsic

evidence. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.

1997).2

The district court did not err in concluding the Laytons’ 2007 Agreement

applies to the extension of credit by CPS in 2008. The Agreement gives CPS the

1 This court reviews factual findings made by a district court after a bench trial for clear error, Fed. R. Civ. Proc. Rule 52(a)(6), while questions of law are reviewed de novo, Commodity Futures Trading Comm’n v. Levy, 541 F.3d 1102, 1110 (11th Cir. 2008). 2 As provided in the Agreement, Colorado law governs its interpretation.

2 “right to reduce the Credit Limit and/or withdraw credit under this Credit

Agreement at any time without prior notice,” and provides all credit sales “are due

and payable in full by the due date according to the terms of the sale specified on

the invoice.” These provisions anticipate the due date of the amounts owed may

change during the life of the Agreement, indicating the Agreement will continue

beyond the initial payment term of December 1, 2007. Assuming the language of

the Agreement is ambiguous, however, the district court did not err in relying on

extrinsic evidence, specifically the testimony of Andy Armstrong, to reach its

conclusion. See Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir. 1995)

(recognizing this Court gives deference to the district court’s opportunity to judge

the credibility of witnesses). Moreover, after finding the Agreement did not

terminate on December 1, 2007, the court found no credible evidence it was ever

terminated. We see no clear error in the court’s findings.

II.

The Laytons assert for the first time on appeal that the court erred when it

used substantial portions of CPS’s proposed findings of fact and conclusions of

law in its Order. At the conclusion of the bench trial, the court asked each party to

submit proposed findings of fact and conclusions of law. The court then entered

an order confirming this request. Without objection, the parties submitted their

3 proposals. The Laytons never objected to the court’s request and did not raise this

issue in their subsequent motion for a new trial. We will not consider it on appeal.

See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004) (noting this Court will not consider an issue raised for the first time on

appeal).

AFFIRM.