United States District Court, S.D. Mississippi, Western Division
NANCY ELSAS, Individually, as personal representative of the Estate of Louis Jacob Elsas II, and as Trustee of the Residuary Trust of the Louis Jacob Elsas II Management Trust U/A, Sept. 28, 2011 PLAINTIFF
YAKKASSIPPI, LLC DEFENDANT
MEMORANDUM OPINION AND ORDER
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on the Plaintiff's Motion for
Determination of Reasonable Attorney's Fees
(docket entry 95), and on the
Defendant's Response thereto. Having carefully considered
the motion and response, the memoranda of the parties and the
applicable law, and being fully advised in the premises, the
Court finds as follows:
Court previously granted the plaintiff's Motion for
Summary Judgment seeking damages from the defendant for
breach of contract, and found the proper measure of damages
to be $500, 000, the agreed-upon price for the
defendant's purchase of the plaintiff's mineral
interests in Wilkinson County, Mississippi. Because the
purchase price was easily ascertained by reference to the
Purchase and Sale Agreement (“PSA”), and because
such sum will fully compensate the plaintiff for its loss
under the terms of the contract, it was unnecessary for the
Court to consider the equitable remedy of specific
performance. The Court also ordered the parties to brief the
issue of attorney's fees and costs, but the Court found
the briefing inadequate, and ordered further briefing which
is now before the Court.
the so-called “American Rule, ” parties are
required to bear their own attorney's fees “absent
explicit statutory authority” to the contrary.
Buckhannon Bd. & Care Home, Inc. v. West Virginia
Dept. of Health and Human Res., 532 U.S. 598, 602
(2001). Whether a party may recover attorney's fees under
a statute is a question of law for the Court. Walker
Int'l Holdings, Ltd. v. Republic of Congo, 415 F.3d
413, 416 (5th Cir. 2005). Where, as here, federal
jurisdiction is based on diversity, state law controls the
award of attorneys' fees. Mid-Continent Casualty Co.
v. Chevron Pipe Line Co., 205 F.3d 222, 230
(5th Cir. 2000).
parties' Purchase and Sale Agreement provides that
“[t]he parties agree and acknowledge that all
provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of
Texas.” PSA, ¶ 11(a). The Court shall therefore
apply Texas law. Specifically, federal courts within the
Fifth Circuit applying Texas law look to the Supreme Court of
Texas for guidance. Citigroup Inc. v. Fed. Ins. Co.,
649 F.3d 367, 371 (5th Cir. 2011). In the absence
of a binding decision from the Supreme Court of Texas, this
Court may look to decisions of Texas intermediate appellate
courts for guidance; however, decisions of the intermediate
courts are not controlling, and this Court must ultimately
make a judgment as to how the Supreme Court of Texas would
rule on the issue. See United Teacher Assocs. Ins. Co. v.
Union Life Ins. Co., 414 F.3d 558, 565-66
(5th Cir. 2005).
law provides that a litigant can recover attorney's fees
“only if specifically provided for by statute or
contract.” Epps v. Fowler, 351 S.W.3d
862, 865 (Tex. 2011)(citing Intercontinental
Grp. P'ship v. KB Home Lone Start L.P., 295
S.W.3d 650, 653 (Tex. 2009)). The plaintiff contends that
“[t]he PSA provides that if either party to the
contract is required to take legal action as a result of
breach, attorney's fees will be awarded to the prevailing
party.” Plaintiff's Motion for Determination of
Reasonable Attorney's Fees (docket entry 95), ¶ 2.
The plaintiff relies on ¶ 10 of the PSA, which provides
Buyer. Except as specifically provided herein, Buyer
agrees to indemnify and hold Seller, its members,
shareholders, officers, directors, employees, and agents
harmless from all claims, losses, costs, liabilities, and
expenses arising out of or resulting from any
misrepresentation or breach of any warranty, covenant, or
agreement of Buyer contained in this Agreement. THIS
INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH DUTIES,
OBLIGATIONS, OR LIABILITIES, OR SUCH CLAIMS LIABILITIES,
LOSSES, COSTS, OR EXPENSES ARISE OUT OF (I) NEGLIGENCE
(INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT
NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT
INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF ANY
INDEMNIFIED PARTY, OR (ii) STRICT LIABILITY. THE PARTIES
AGREE THAT THE FOREGOING COMPLIES WITH THE EXPRESS NEGLIGENCE
RULE AND IS CONSPICUOUS.
an indemnitor cannot be liable for attorney's fees unless
the indemnity agreement expressly so provides. Freight
Terminals, Inc. v. Ryder System, Inc., 326 F.Supp. 881,
887 (S.D. Tex. 1971)(citing W.R. Grimshaw Co. v. Martin
Wright Electric Co., 283 F.Supp. 628 (W.D. Tex. 1968),
reversed on other grounds, 419 F.2d 1381 (5th Cir.
1969), cert. denied, 397 U.S. 1022 (1970); Mitchell's
Inc. v. Friedman, 303 S.W.2d 775 (1957)).
Texas law provides that a litigant can recover attorney's
fees only if specifically provided for by statute or
contract, and because the plaintiff fails to show any
contract or statutory provision allowing recovery of fees in
this case, the plaintiff's motion for attorney's fees
must be denied. The plaintiff is, however, entitled to file a
Bill of Costs with the Clerk of Court.
to Local Uniform Civil Rule 52(a), counsel for plaintiff
shall submit a proposed Final Judgment to the undersigned
District Judge via electronic mail. The plaintiff's
attorney shall also provide a copy to defendant's
counsel. L.U.C.R. 52(b). Once the Court has entered a Final
Judgment, the plaintiff must file her Bill of Costs not later
than 30 days after entry of judgment. L.U.C.R. 54(c). Federal
Rule of Civil Procedure 54(d)(1) states that “costs -
other than attorney's fees - should be allowed to the
prevailing party” in an action. “The clerk may
tax costs on 14 days' notice.” Fed.R.Civ.P.
54(d)(1). “On motion served within the next 7 days, the
court may review the clerk's action.” Id.
30 days from entry of judgment, the plaintiff shall file her
Bill of Costs in accordance with the requirements of Local
Uniform Civil Rule 54 and 28 U.S.C. § 1920 governing the
taxation of costs. Once the Clerk taxes costs after waiting
the requisite 14 days, the burden is on the defendant to file
a motion with the Court within 7 days if it wishes the Court
to review the Clerk's taxation. See LaRavia v.
Cerise, 512 Fed.Appx. 397, 398 (5th Cir.
2013)(discussing procedure to challenge taxation of
costs.”); Cashman Equip. Corp. v. Rozel Operating
Co., 2011 WL 2437601, at *1 (M.D. La. June 17,
2011)(“Rule 54(d) clearly contemplates that the
non-prevailing party would bring the motion to challenge a
bill of costs.”); see also Blakley, 648 F.3d
at 930 (there is no requirement that the prevailing party
file a motion).
addition, there is a “strong presumption that the
prevailing party will be awarded costs.” Pacheco v.
Mineta, 448 F.3d 783, 793 (5th Cir. 2006).
The Fifth Circuit “has held that the prevailing party
is prima facie entitled to costs....” Id. at
793-94 (citation and quotation marks omitted). There is no
requirement that the costs awarded be associated solely with,
or requested in, a motion for summary judgement filed by the
party seeking costs; nor is it necessary for the Court's
Summary Judgment Order ...