Case: 10-30464 Document: 00511328719 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          December 21, 2010

                                     No. 10-30464                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



RODNEY WILLIAMS

                                                   Plaintiff-Appellant
v.

CLASSIC LOCKSMITH, L.L.C.;
GARY M. TILLEY;
FLUOR ENTERPRISES, INCORPORATED,

                                                   Defendants-Appellees




                  Appeal from the United States District Court for
                         the Western District of Louisiana
                             USDC No. 2:06-CV-1547


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Rodney Williams ("Williams") appeals the district
court's order granting summary judgment for Defendants-Appellees Classic
Locksmith, L.L.C. ("Classic"), and Gary M. Tilley ("Tilley").1 We affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
       Defendant-Appellee Fluor Enterprises, Incorporated was dismissed as a defendant
pursuant to an earlier order by the district court. Williams does not appeal that earlier order.
     Case: 10-30464 Document: 00511328719 Page: 2 Date Filed: 12/21/2010



                                      No. 10-30464

       On appeal, Williams raises three issues. First, that the district court erred
when it ruled that the contract had been validly terminated because Williams
contends he did not receive fair notice. Second, he argues that the district court
erred when it ruled that the contract had been validly terminated because
Williams contends that Classic acted in bad faith. And third, Williams argues
that district court erred when it ruled that the agreement between Williams and
Classic was of unspecified duration.
       Williams has waived his first two issues by not raising them at the district
court. Marco Ltd. P'ship v. Wellons, Inc., 

, 877 (5th Cir. 2009)
("[A]rguments not raised before the district court are waived and cannot be
raised for the first time on appeal."). Williams argues that he brought a breach
of contract action, which implicitly contains the concepts of reasonable notice
and bad faith. However, Williams misapprehends waiver, which applies to
arguments, not causes of action. And, "'[e]ven an issue raised in the complaint
but ignored at summary judgment may be deemed waived.'" Mid-Continent Cas.
Co. v. Bay Rock Operating Co., 

, 113 (5th Cir. 2010) (quoting
Grenier v. Cyanamid Plastics, Inc., 

, 678 (1st Cir. 1995)). Williams
has waived his first two issues based on reasonable notice and bad faith.
       As his third issue, Williams argues that the district court erred when it
held that the letter agreement was of unspecified duration and could, therefore,
be terminated at will by either party pursuant to Louisiana Civil Code art.
2024.2 Williams contends that the district court should have read § 2024 in
parity with § 1778, which outlines the various types of terms of performance.3


       2
         "A contract of unspecified duration may be terminated at the will of either party by
giving notice, reasonable in time and form, to the other party." LA . CIV . CODE art. 2024.
       3
              A term for the performance of an obligation is a period of time
              either certain or uncertain. It is certain when it is fixed. It is
              uncertain when it is not fixed but is determinable either by the
              intent of the parties or by the occurrence of a future and certain

                                              2
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                                       No. 10-30464

According to Williams, since the agreement was for delivery of mobile homes and
travel trailers for FEMA in the wake of Hurricane Katrina, the contract term
was determinable by a future event, namely FEMA's continued need for mobile
homes and travel trailers.
       Assuming that the agreement was a valid contract—a determination we
are not making here—we are not convinced that the "future event" discussed in
§ 1778 is broad enough to cover the facts of this case.                 The examples the
Louisiana Code gives of terms that were not fixed but determinable from future
and certain events involved events that were specific identifiable moments in
time that served as a single reference point. L A. C IV. C ODE § 1778, cmts. b, d, e
(date of a person's death, date of a wedding, harvest of a crop). Louisiana case
law also follows this pattern of determining duration with reference to a specific
identifiable event. See, e.g., Caddo Gas Gathering L.L.C. v. Regency Intrastate
Gas LLC, 

, 237–38 (La. Ct. App. 2009) (duration of gas
transportation agreement determinable by useful life of pipeline); Schultz v. Hill,

, 645 (La. Ct. App. 2003) (duration of agreement for real estate
commissions determined by expiration of lease). Here, FEMA's need for trailers
cannot be described as a single definable moment at which the contract would
terminate.     The duration of the agreement was undeterminable and, thus,
terminable at will by either party.
       AFFIRMED.




               event. It is also uncertain when it is not determinable, in which
               case the obligation must be performed within a reasonable time.
LA . CIV . CODE art. 1778.

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