[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                         AUGUST 3, 2010
                            No. 10-10748
                                                           JOHN LEY
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                  D. C. Docket No. 7:09-cv-00094-SLB


DUNCAN-WILLIAMS, INC.,

                                                          Plaintiff-Appellant,

                                 versus

U.S. BANK NATIONAL ASSOCIATION,

                                                         Defendant-Appellee.

                      ________________________

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

                            (August 3, 2010)

Before BLACK, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:
      Duncan-Williams, Inc. appeals the district court’s grant of summary

judgment in favor of U.S. Bank National Association (U.S. Bank) in Duncan-

Williams’ action for indemnity or contribution from U.S. Bank. After de novo

review, we affirm the district court. See Rioux v. City of Atlanta, Ga., 

, 1274 (11th Cir. 2008) (reviewing the district court’s grant of summary

judgment de novo).

                                I. BACKGROUND

      On April 20, 2000, the Capstone Improvement District (District), an

instrumentality of the state of Alabama, issued $13 million in bonds for the

purpose of developing a residential subdivision. Acting as an underwriter of the

bond issuance, Duncan-Williams purchased half of the District’s bonds and resold

them to Ruskin Vest, Industrial Products, Inc., and Teri Jones. U.S. Bank served

as the trustee for the bondholders.

      Beginning in 2001, construction of the subdivision began to experience cost

overruns due to poor management or negligence on the part of the developer, who

eventually refused to complete construction. As a result, the bonds defaulted in

August of 2003.

      Ruskin Vest and Industrial Products filed an action against Duncan-

Williams in Tennessee court for violations of the Tennessee Securities Act,

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negligence, common law fraud, breach of fiduciary duty, and violation of the

Tennessee Consumer Protection Act. After the jury ruled against Duncan-

Williams, the parties settled the case for $1.2 million before judgment was entered

on the jury’s verdict.

      Teri Jones filed suit against Duncan-Williams and U.S. Bank in Alabama

state court, claiming fraud in the issuance of the bonds. Duncan-Williams settled

the case for $150,000.

      Duncan-Williams thereafter filed an action against U.S. Bank, alleging

Duncan-Williams was entitled to indemnity and contribution from U.S. Bank for

the amounts paid in settlement. The district court granted summary judgment in

favor of U.S. Bank. The court held Alabama law governed Duncan-Williams’

claim for indemnity since such claim was based on U.S. Bank’s Trust Indenture,

which provided that Alabama law would control any dispute arising therefrom.

Pursuant to Alabama law, Duncan-Williams waived any argument that an implied

right of indemnity arose from the indenture by settling the underlying cases

without providing U.S. Bank with proper notice of an intention to seek indemnity.

The court alternatively found the indenture did not create an implied right to

indemnity because Alabama law generally does not provide for indemnity or

contribution between joint tortfeasors.

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       The district court also rejected Duncan-Williams’ claim for contribution.

Using Alabama choice of law principles, the court applied the law of the place of

the underlying lawsuit: Tennessee law for the Vest case and Alabama law for the

Jones case. The court dismissed Duncan-Williams’ claim for contribution from

the Jones case because, under Alabama law, joint tortfeasors are generally not

entitled to contribution. The court also dismissed Duncan-Williams’ claim for

contribution under Tennessee’s Uniform Contribution Among Tort-Feasors Act

because the settlement in the Vest case did not extinguish U.S. Bank’s potential

liability.

                                      II. DISCUSSION

       Essentially, Duncan-Williams contends the district court erred by failing to

find a right to contribution or indemnity arose from U.S. Bank’s participation in

the collective enterprise of the bond issuance.1 The district court, however, did not

err by concluding Duncan-Williams is not entitled to contribution or indemnity

under either Alabama law or Tennessee law.2


       1
          Duncan-Williams asserts a genuine issue of material fact exists as to whether U.S. Bank
is jointly and severally liable due to the affidavits of John S. Jumper and Duncan F. Williams.
For the purposes of this opinion, we will assume without deciding that Duncan-Williams created
a material issue of fact on joint and several liability.
       2
        Duncan-Williams contends Tennessee law should apply to both underlying cases. As
explained below, however, Duncan-Williams’ claims fail under both Tennessee law and
Alabama law.

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      Under Alabama law, generally “there is no right to indemnity or

contribution between joint tortfeasors.” SouthTrust Bank v. Jones, Morrison,

Womack & Dearing, P.C., 

, 899 (Ala. Civ. App. 2005). An

exception is made only where a party is liable because of passive negligence, “i.e.,

liability that the law imposes on one party for the wrongful conduct of another.”

Nationwide Mut. Ins. Co. v. Hall, 

, 556 (Ala. 1994). Tennessee

applies similar rules with respect to indemnification. See Owens v. Truckstops of

Am., 

, 433 (Tenn. 1996) (holding an obligation to indemnify may

arise by implication “where one party is held liable solely by imputation of law

because of a relation to a wrongdoer”). In the underlying litigation, Duncan-

Williams was sued for its own actions rather than the wrongful conduct of U.S.

Bank. The district court therefore did not err by dismissing Duncan-Williams’

claims for contribution and indemnity based on the Jones case and indemnity

based on the Vest case.

      In its complaint, Duncan-Williams asserted a claim for contribution based

solely on the Uniform Contribution Among Tort-Feasors Act. Tenn. Code Ann.

§ 29-11-101 to -106 (2010). Section 102(d) provides: “A tort-feasor who enters

into a settlement with a claimant is not entitled to recover contribution from

another tort-feasor whose liability for the injury or wrongful death is not

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extinguished by the settlement . . . .” The district court did not err by dismissing

Duncan-Williams’ contribution claim based on the Vest case because Duncan-

Williams has failed to allege or prove its settlement in the Vest case extinguished

U.S. Bank’s liability.

                                III. CONCLUSION

      The district court did not err by granting summary judgment against

Duncan-Williams on its claims for indemnity and contribution. Duncan-Williams

is not entitled to contribution or indemnity under Alabama law or indemnity under

Tennessee law because its liability was not solely imputed by law from its

relationship with U.S. Bank. Moreover, Duncan-Williams has failed to meet the

requirements for obtaining contribution found in Tennessee’s Uniform

Contribution Among Tort-Feasors Act. Accordingly, we affirm.

      AFFIRMED.




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