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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 12, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 00-31195
JESCO CONSTRUCTION CORPORATION,
Plaintiff - Appellee,
VERSUS
NATIONSBANK CORPORATION, ET AL.,
Defendants,
AMERICAN INTERNATIONAL SPECIALTY LINES
INSURANCE COMPANY; CONTINENTAL CASUALTY COMPANY;
UNDERWRITERS AT LLOYDS OF LONDON,
Defendants - Appellants
VERSUS
BANK OF AMERICA COMMERCIAL FINANCE CORPORATION,
formerly known as NationsCredit Commercial Corporation,
Cross Claimant - Appellant.
Appeals from the United States District Court
For the Eastern District of Louisiana
(98-CV-1657)
ON PETITION FOR REHEARING
Opinion 321 F.3d 501
(5th Cir. February 5, 2003)

Before JONES, and DeMOSS, Circuit Judges, and FELDMAN1, District
Judge.
PER CURIAM:2
Before this Court is a petition for rehearing filed by Jesco
Construction Company ("Jesco"). Jesco asks that this Court amend
its previous opinion with respect to that portion of the opinion
which affirmed the district court's grant of summary judgment.
The district court originally granted summary judgment against
Jesco on its breach of contract claims because it found that the
writings involved did not meet the requirements of the Louisiana
Credit Agreement Statute and Jesco was therefore asserting rights
under an oral agreement. Those requirements are that "the
agreement is in writing, expresses consideration, sets forth the
relevant terms and conditions, and is signed by the creditor and
the debtor." La. Rev. Stat. § 6:1122. There were only two
documents of significance in the underlying case. One was a faxed
letter, the first paragraph of which read:
Based upon our preliminary review of the information you
have submitted to us, we are pleased to submit this
proposal along the parameters outlined below. Please
understand that after completion of our due diligence,
NationsCredit may require alternative parameters, or may
decline to offer you financing. The following is not a
1
District Judge of the Eastern District of Louisiana,
sitting by designation.
2
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that this opinion should not be published and is not precedent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.
2

commitment but only an expression of our interest.
The signatures of both parties appeared at the end of this
document. The other document was a facsimile sent from Bank of
America's agent Kellee Cappas to Jesco's president, John E.
Shavers, and it contained the following four handwritten sentences:
"We can close this deal in 3 wks if we receive a total check of
$35,000 tomorrow. The additional $15,000 will commence the legal
documentation process. Call me or Kim Metzner with any questions."
This document had no signatures.
In analyzing whether these documents met the requirements of
the Louisiana Credit Agreement Statute, the district court stated:
In the case at hand, regardless of which version of
the events . . . is accepted as true, Jesco's claim for
damages as a result of [Bank of America's] purported
breach of contract cannot stand. Even if the facsimile
cover sheet was sent separate from the letter of interest
which was faxed by Cappas to Shavers, neither document
satisfies the requirements of the Louisiana Credit
Agreement Statute. See La. Rev. Stat. § 6:1122.
The
"cover
sheet"
fails
to
satisfy
said
requirements, among other reasons, because it bears no
signatures. The letter of interest is not a valid credit
agreement because it fails to set forth the relevant
terms and conditions of any agreement to lend money or
extend credit. As quoted above, said letter clearly
provide that [Bank of America] "may require alternative
parameters, or may decline to offer [Jesco] financing."
The letter "is not a commitment but only an expression of
[Bank of America's] interest." Even if taken together,
as Jesco (paradoxically) argues that they must, the
letter and cover sheet do not satisfy the requirements of
the Louisiana Credit Agreement Statute.
Jesco Constr. Corp. v. Nationsbank Corp., No. 98-1657 (E.D. La.
filed July 18, 2000) (internal citations and footnotes omitted).
3

The district court went on to also reject Jesco's argument that
Bank of America was not a financial institution for the purposes of
the Louisiana Credit Agreement Statute. We agree with the district
court's analysis that these writings failed to meet the
requirements of the Louisiana Credit Agreement Statute and that
Bank of America was a lending institution entitled to the
protection of this Statute.
What was not clear to the district court, however, was whether
or not the failure to meet the requirements of the Louisiana Credit
Agreement Statute would also preclude the other claims asserted by
Jesco. In its original order, the district court made an "Erie
guess" to find that these other claims were not precluded and
denied Bank of America's motion for summary judgment on those
claims. A single order was entered on July 18, 2000, which both
granted summary judgment to Bank of America on Jesco's breach of
contract claims and denied summary judgment on Jesco's other
claims.
On September 1, 2000, the district court amended its July 18,
2000 order so as to include therein the language required by
Section 1292(a), that the issue of whether or not the Louisiana
Credit Agreement Statute precludes all non-contract causes of
action involved a controlling question of law as to which there is
substantial ground for difference of opinion; and certified the
issue for immediate appeal. In doing so, the district court stated
4

that "[a]ny such application for appeal shall be limited to the
question of whether the Louisiana Credit Agreement Statute
precludes all actions for damages arising from oral credit
agreements regardless of the legal theory of recovery asserted."
On October 10, 2000, a panel of this Court granted leave to
file an interlocutory appeal to American International Specialty
Lines Insurance Company, Continental Casualty Company, and
Underwriters at Lloyd's of London, but denied leave to Bank of
America. However, on November 21, 2000, in a rehearing the same
panel granted Bank of America leave to file an appeal.
On appeal, we certified the question of whether the Louisiana
Credit Agreement Statute precludes all causes of action to the
Louisiana Supreme Court and that Court answered in the
affirmative. We then entered an order affirming the district
court's grant of summary judgment as to the breach of contract
claims and reversing and remanding as to the denial of summary
judgment on the other causes of action because the Louisiana Credit
Agreement Statute precludes all causes of action, not just breach
of contract actions.
Jesco now asks us to re-word our opinion so that Jesco may
appeal the district court's grant of summary judgment as to the
breach of contract claims because Jesco maintains that the writings
in question did meet the requirements of the Louisiana Credit
Agreement Statute. Jesco claims that because the district court
5

specifically limited the issue on appeal and also because it did so
in a separate order, this court lacks jurisdiction to affirm that
portion of the district court's ruling granting summary judgment.
Jesco also specifically stated in their original appellate brief
that, "The prospect of an appeal by Jesco of the district court's
dismissal of the contract action, when it granted partial summary
judgment to the defendants, lingers."3
Jesco claims, therefore,
that this Court is without jurisdiction to rule on the propriety of
the district court's granting of summary judgment. However, as
Bank of America points out, this Court is not limited by the issues
as framed by the parties or even the district court. The Supreme
Court has stated:
As the text of § 1292(b) indicates, appellate
jurisdiction applies to the order certified to the court
of appeals, and is not tied to the particular question
formulated by the district court. The court of appeals
may not reach beyond the certified order to address other
orders made in the case. United States v. Stanley, 483
U.S. 669, 677 (1987). But the appellate court may
address any issue fairly included within the certified
order because "it is the order that is appealable, and
not the controlling question identified by the district
court." 9 J. Moore & B. Ward, Moore's Federal Practice ¶
110.25[1], p. 300 (2d ed.1995). See also 16 C. Wright, A.
Miller, E. Cooper, & E. Gressman, Federal Practice and
Procedure § 3929, pp. 144-145 (1977) ("[T]he court of
appeals may review the entire order, either to consider
a question different than the one certified as
3Jesco, however, seems to acknowledge that it was a single
order that was appealed in its brief by stating that "the court
certified part of its order so as to authorize an interlocutory
appeal of its denial of defendants' motion for summary judgment
on Jesco's separate and independent actions." Appellee's Brief
at 3.
6

controlling or to decide the case despite the lack of any
identified controlling question."); Note, Interlocutory
Appeals in the Federal Courts Under 28 U.S.C. § 1292(b),
88 Harv. L. Rev. 607, 628-629 (1975) ("scope of review
[includes] all issues material to the order in
question"). (Emphasis added)
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996).
Therefore, so long as an issue is fairly included within the
certified order, we have jurisdiction to decide that issue.
In the present case, the language which the district court
used in its September 1, 2000 order certifying the question
actually amended its previous July 18th order. Therefore, under
Yamaha the entire previous order is subject to our jurisdiction
because it is identified as the pertinent order in the order
approving an appeal.4 Consequently, we have jurisdiction to decide
both the district court's grant of summary judgment and its denial
of summary judgment because both actions are clearly included
within the certified order. In both, this Court was also required
to determine whether the district court correctly determined that
the writings failed to meet the requirements of the Louisiana
Credit Agreement Statute. The issues are all inextricably
intertwined with each other. We certified these same issues to the
Louisiana Supreme Court and that Court:
1)
accepted the determination of the U.S. District
4The district court stated that "an immediate appeal from
the order may materially advance the ultimate determination of
the litigation." The words "the order" is a reference to the
July 18, 2000 order which was being amended.
7

Court that the writings in this case did not
satisfy the requirement of the Louisiana Statute
and that any agreement could only be an oral
agreement;
2)
determined that Bank of America "qualifies as any
other type of creditor that extends credit" as
defined in the Louisiana Statute; and
3)
that the Louisiana Statute precludes "all actions
for damages arising from oral credit agreements,
regardless of the legal theory of recovery
asserted".
In conclusion, we hold that under Yamaha's interpretation of
Section 1292(a), this Court has jurisdiction to review both the
denial of summary judgment and the granting of summary judgment as
contained in the July 18th order. Furthermore, utilizing the
answers given us by the Louisiana Supreme Court we conclude that
the district court did not err in granting summary judgment on the
breach of contract claim but that its "Erie guess" was wrong as to
the other causes of action and should be reversed. We therefore
deny Jesco's petition for rehearing.
PETITION DENIED.
8