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Frank C. Bailey Enterprises, Inc. v. Cargill

United States Court of Appeals, Fifth Circuit
Oct 3, 1978
582 F.2d 333 (5th Cir. 1978)

Summary

holding that "an appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court"

Summary of this case from All. for Good Gov't v. Coal. for Better Gov't

Opinion

No. 78-1423. Summary Calendar.

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

October 3, 1978.

J. Earl Smith, Dothan, Ala., for plaintiff-appellant.

J. Huntley Johnson, Dothan, Ala., Ben Kirbo, Bainbridge, Ga., for defendant-appellee.

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

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.



The sole issue raised on appeal is whether the district court correctly granted the defendant-appellee's motion for summary judgment.

We have reviewed the record and find that the appellee carried its burden of showing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Once the movant has carried this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the non-moving party does not do so, summary judgment for the movant is proper. Oglesby v. Terminal Transport Co., 543 F.2d 1111, 1112 (5th Cir. 1976); Sweet v. Childs, 507 F.2d 675, 679 (5th Cir. 1975). In this case, the appellant's allegations and denials failed to establish that there was a genuine issue for trial. The district court, therefore, properly granted summary judgment for the appellee.

On appeal, counsel for appellant sets forth additional allegations in an attempt to show that there was in fact a genuine issue for trial. However, an appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court. Munoz v. International Alliance, 563 F.2d 205 (5th Cir. 1977); Garcia v. American Marine Corp., 432 F.2d 6, 8 (5th Cir. 1970). Accordingly, we disregard the appellant's additional allegations and affirm the judgment below.

AFFIRMED.


Summaries of

Frank C. Bailey Enterprises, Inc. v. Cargill

United States Court of Appeals, Fifth Circuit
Oct 3, 1978
582 F.2d 333 (5th Cir. 1978)

holding that "an appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court"

Summary of this case from All. for Good Gov't v. Coal. for Better Gov't

In Frank C. Bailey, the citations to Munoz v. International Alliance of Theatrical Stage Employees and Garcia v. American Marine Corp. suggest that the appellant/nonmovant had introduced at the appellate stage facts that had never even been placed in the record before the district court, for in those two cases the Court, disapproved of such a method of attacking a summary judgment.

Summary of this case from Skotak v. Tenneco Resins, Inc.

discussing abandonment and waiver

Summary of this case from Carroll v. City of Dallas
Case details for

Frank C. Bailey Enterprises, Inc. v. Cargill

Case Details

Full title:FRANK C. BAILEY ENTERPRISES, INC., PLAINTIFF-APPELLANT, v. CARGILL…

Court:United States Court of Appeals, Fifth Circuit

Date published: Oct 3, 1978

Citations

582 F.2d 333 (5th Cir. 1978)

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