Trafficware Group, Inc. v. Sun Industries,LLC et al

Filing 165

RULING: The 156 MOTION for Judgment as a Matter of Law Under Rule 50(b) OR, ALTERNATIVELY, MOTION for a New Trial Under Rule 59 is DENIED. The 150 MOTION for Attorney Fees and Motion to Tax Costs is granted as adjusted by the Court's ruling . Sun is awarded pre-judgment interests in accordance with the Court's ruling; however, Sun is denied a credit for Merchants' settlement payment as set forth above. The parties shall submit a proposed Order awarding these itemized amounts in accordance with the Courts ruling on or before 11/3/2017. Signed by Judge Shelly D. Dick on 10/24/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TRAFFICWARE GROUP, INC.,
INDIVIDUALLY AND AS SUCCESSOR IN
INTEREST TO NAZTEC, INC.

CIVIL ACTION

VERSUS

15-106-SDD-EWD

SUN INDUSTRIES, LLC, SUN
ELECTRICAL & INSTRUMENTATION, LLC
AND MERCHANTS BONDING COMPANY
RULING
This matter is before the Court on the Motion for Judgment as a Matter of Law
Under Rule 50(b) or Alternatively for a New Trial Under Rule 59 1 filed by Command
Construction Industries, LLC (“Command”).

Sun Electrical & Instrumentation, LLC

(“Sun”) has filed an Opposition2 to this motion. Also before the Court is the Motion For
Attorney Fees and Motion to Tax Costs 3 filed by Command. Sun has also filed an
Opposition4 to this motion. The Court heard oral argument on the motion for attorney
fees on October 4, 2017.

The Court has also considered the Parties’ post-trial

memoranda in connection with this motion. For the reasons which follow, the Court
denies Command’s Motion for Judgment as a Matter of Law Under Rule 50(b) or
Alternatively for a New Trial Under Rule 50 but grants the Motion For Attorney Fees and

1
2
3
4

Rec. Doc. No. 156.
Rec. Doc. No. 157.
Rec. Doc. No. 150.
Rec. Doc. No. 161.

41734 
Page 1 of 25 

Motion to Tax Costs with adjustments as set forth below.
I.

BACKGROUND
This matter involves claims arising out of a subcontract between Command and

Sun.

Command was the general contractor for a Louisiana State Department of

Transportation and Development project known as the LA 431 Intersection Improvements
Project. Sun was a subcontractor to Command relating to traffic signal labor and/or
materials with regard to the project, and this relationship is the subject matter of this
litigation. The claims between Sun and Command were tried by a jury from March 27
through March 30, 2017. A jury returned a verdict primarily in favor of Command, finding
that Command did not breach its subcontract with Sun and finding that Command had
made all required payments to Sun prior to demobilizing. The only finding in favor of Sun
was the jury’s finding that Command caused damage to Sun’s conduit on the project in
the amount of $20,872.18. The jury also found that Command did not have reasonable
cause to withhold payments to Sun after Sun returned to the job in May 2014. Command
now moves for judgment as a matter of law or a new trial and further claims that it is
entitled to attorneys’ fees and costs under both Louisiana law and the contract governing
the relationship between the parties.
II.

LAW & ANALYSIS
A. Motion to Alter or Amend Judgment/Motion for New Trial
“A Rule 59(e) motion ‘calls into question the correctness of a judgment.’”5 “A Rule

59(e) motion must clearly establish either a manifest error of law or fact or must present

5

Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)(quoting In re Transtexas Gas Corp., 303
F.3d 571, 581 (5th Cir. 2002)).
2

newly discovered evidence”6 and “is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of
judgment.”7 “‘Manifest error’ is one that ‘is plain and indisputable, and that amounts to a
complete disregard of the controlling law.’” 8

The Fifth Circuit has explained that

reconsideration of a judgment after it has been entered under Rule 59(e) “[i]s an
extraordinary remedy that should be used sparingly.” 9

As this Court has recently

explained, “[w]hile the district courts do have ‘considerable discretion in deciding whether
to grant or deny a motion to alter judgment,’ denial of Rule 59(e) motions to alter or amend
is favored.”

10

Command has failed to satisfy the above listed requirements.

Accordingly, the Court shall deny Command’s Motion to alter or amend the judgment.
A motion for new trial is governed by Rule 59(a)(1)(A) of the Federal Rules of Civil
Procedure, which states that a district court “may, on motion, grant a new trial on all or
some of the issues … after a jury trial, for any reason for which a new trial has heretofore
been granted in an action at law in federal court.” It is left to the district court’s “sound
discretion” as to whether it will grant or deny a motion for new trial.11 Although Rule 59(a)
does not list specific grounds for a new trial, the Fifth Circuit has held that a new trial may
be granted if “the verdict is against the weight of the evidence, the damages awarded are

6

Advocare Int’l v. Horizon Laboratories, Inc., 524 F.3d 679, 691 (5th Cir. 2008) (quoting Rosenzweig v.
Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003)(quoting Simon v. U.S., 891 F.2d 1154, 1159 (5th Cir. 1990))).
7
Templet, 367 F.3d at 478-9 (5th Cir. 2004).
8
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)(quoting Venegas-Hernandez v. Sonolux
Records, 370 F.3d 183, 195 (1st Cir. 2004)).
9
Templet, 367 F.3d at 479 (citing Clancy v. Empl’rs Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D.La.
2000)).
10
Brown v. Louisiana State Senate, 2013 WL 5603232, at *1 (M.D.La. Oct. 11, 2013)(quoting Hale v.
Townley, 45 F.3d 914, 921 (5th Cir. 1995)).
11
Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998).
3

excessive, the trial was unfair, or prejudicial error was committed in its course.”12 When
a party moves for a new trial on evidentiary grounds, the court will not grant a new trial
unless “the verdict is against the great weight of the evidence.”13 Ultimately, the court
must view the evidence in “a light most favorable to the jury’s verdict, and the verdict must
be affirmed unless the evidence points so strongly and overwhelmingly in favor of one
party that the court believes that reasonable persons could not arrive at a contrary
conclusion.”14 “Where the jury could have reached a number of different conclusions, all
of which would have sufficient support based on the evidence, the jury’s findings will be
upheld.”15
The jury is charged with the responsibility of evaluating the credibility of witnesses
and sorting through conflicting testimony. Thus, the mere fact that evidence is conflicting
is not enough to set aside the verdict and order a new trial.16 To the contrary, “the more
sharply the evidence conflicts, the more reluctant the judge should be to substitute his
judgment for that of the jury.”17
First, Command contends that the jury ignored the contractual provisions that
Command’s sworn itemization of damages is presumptively correct.

Command

contends that, once the jury determined that Sun defaulted on the contract, Section 22.4
of the contract was triggered and provides that Command’s “sworn itemized statement

12

Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985)(citations omitted); See also, Kohler
v. Englade, 365 F.Supp.2d 758, 761 (M.D.La. 2005).
13
Pryor, 138 F.3d at 1026.
14
Dawson v. Wal-Mart Stores, 978 F.2d 205, 208 (5th Cir. 1992)(citing Jones v. Wal-Mart Stores, Inc., 870
F.2d 982, 987 (5th Cir. 1989)).
15
Id. at 208.
16
Dawson v. Wal–Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir.1992).
17
11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2806, at 67 (1995).
4

thereof of the checks or other evidence of payment shall be prima facie evidence of the
fact and extent of Subcontractor’s liability.”18 Command claims that Sun bore the burden
of rebutting the presumptively correct itemization of damages. Because Sun’s evidence
in response to this presumption was that Command was entitled to no damages, and the
jury did not make that finding, Command claims the jury’s damages numbers were “pulled
from thin air.”19 Thus, Command claims that the jury improperly relied on speculation
and conjecture in reaching its damages award numbers, and this verdict should be
corrected by the Court or retried.
The Court disagrees.

As Sun points out, while Command did present the

testimony of Kelly Commander and Patrick Smith on the issue of damages, the jury was
free to give any amount of credibility, in whole or in part, to each witness in accordance
with the Fifth Circuit Pattern Jury Instructions. Further, Command’s failure to produce
evidence or checks of payments for costs incurred could justify the jury’s damages award.
The Court is not persuaded that the amount of the jury’s damages award to Command
was improper or constituted manifest error, and the Court will not substitute Command’s
preferred verdict for the verdict rendered by the jury based on the evidence presented at
trial.
Next, Command contends the jury ignored the terms of the contract in awarding
Sun damages for the damaged conduit. Command cites Section 6 of the Subcontract
which provides that the subcontractor (Sun) is “solely responsible for all materials,

18
19

Rec. Doc. No. 156-1, p. 3, quoting Section 22.4 of Subcontract (emphasis original).
Id.
5

equipment and services until the subcontract work is completed to Owner’s satisfaction.”20
Command contends that the damage to the conduit was alleged to have occurred
between March 2014 and May 2014, the time period when Sun had walked off the project.
Further, the DOTD did not issue final acceptance of the project until August 31, 2015,
about fifteen months after the alleged damage occurred. Thus, Command claims that,
pursuant to the contract, the risk of loss for the damaged conduit remained on Sun, and
the jury ignored the plain language of the contract by awarding Sun damages for the
damaged conduit.
Sun contends that the jury’s award for the damaged conduit is not inconsistent with
the terms of the contract because the damage to the conduit was related to materials and
labor which Sun had performed and Command had been paid for by the DOTD. Thus,
the jury could have reasonably interpreted that this portion of work was “completed to
Owner’s satisfaction” consistent with the terms of the contract. Because the DOTD had
approved and paid for this work, which was later damaged by another party, Sun contends
it was no longer responsible for the conduit. The Court has reviewed the language of
the contract and, considering the evidence submitted at trial, it was not unreasonable for
the jury to interpret the contract in such a manner. Command is not entitled to judgment
as a matter of law or a new trial on this issue.
Accordingly, Command’s Motion for Judgment as a Matter of Law Under Rule
50(b) or Alternatively for a New Trial Under Rule 5921 is DENIED.22

20

Id. at p. 4, quoting Section 6 of Subcontract.
Rec. Doc. No. 156.
22
Command also seeks entry of a judgment in an additional amount of $8,832.00 for another year’s bond
premium that it must pay as a result of Sun’s refusal to remove the lien. Command admits that this amount
was not requested at trial because it did not have the invoice available at the time. As this issue was never
6
21

B. Motion for Attorney’s Fees and Costs
1. Entitlement to Attorney’s Fees/Prevailing Party Status
The Louisiana Supreme Court noted that “Louisiana courts have long held that
attorney fees are not allowed except where authorized by statute or contract.”23 Further,
“[a]ttorney fees are not allowable in an action for breach of contract unless there is a
specific provision therefor in the contract.”24
The ‘prevailing party’ determination is a clear, mechanical one; when a judgment
is entered in favor of a party, it is the prevailing party.”25 Although a plaintiff must obtain
merely some relief to be the prevailing party, the crucial factor in determining success is
the relief obtained. For example, if a plaintiff recovers only nominal damages, the proper
fee usually is none at all, even though the plaintiff has won his case.26 The Fifth Circuit,
interpreting Rule 54(d), has held that:
A party need not prevail on all issues to justify a full award of costs....
Usually the litigant in whose favor judgment is rendered is the prevailing
party for purposes of Rule 54(d). A party who has obtained some relief
usually will be regarded as the prevailing party even though he has not
sustained all of his claims. Cases from this and other circuits consistently
support shifting costs if the prevailing party obtains judgment on even a
fraction of the claims advanced.27

heard or decided by the jury, the Court finds that it is an inappropriate request under Rules 50 and/or 59,
and Command’s motion is DENIED with respect to the increased bond award under this motion.
23
Stutts v. Melton, 13-557, p. 8 (La. 10/15/13); 130 So.3d 808, 814.
24
Hollenshead Oil & Gas v. Gemini Expl., 45,389, p. 13 (La.App. 2 Cir. 7/21/10); 44 So.3d 809, 817 (citing
Maloney v. Oak Builders, Inc., 235 So.2d 386, 390 (La.1970)).
25
Allianz Versicherungs v. Profreight Brokers, Inc., 99 Fed.Appx. 10, 13 (5th Cir. 2004) (citing Baker v.
Bowen, 839 F.2d 1075, 1081 (5th Cir. 1988)); see also 10 James W. Moore et al., MOORE'S FEDERAL
PRACTICE ¶ 54.101[3] (3d ed. 1998) (“[T]he prevailing party is the party in whose favor judgment was
entered, even if that judgment does not fully vindicate the litigant's position in the case.”)).
26
Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 678 (5th Cir. 2015)(citing Farrar v. Hobby, 506 U.S. 103,
115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)).
27
U.S. v. Mitchell, 580 F.2d 789, 793 (5th Cir. 1978) (alterations omitted) (citations omitted) (quotation marks
omitted), superseded by statute on other grounds, 42 U.S.C. § 3614; see also Tempest Publ'g, Inc. v.
Hacienda Records & Recording Studio, Inc., 141 F. Supp. 3d 712, 718 (S.D. Tex. 2015).
7

Command contends it is entitled to recover attorney fees under both statutory28
and contract law. In Louisiana, attorney fees are recoverable in breach of contract cases
as an element of damages if provided for in the contract. Under Louisiana law,29 awards
of attorney fees permitted via contracts are subject to the review and control of the courts.
Ultimately, the well-known Johnson factors 30 apply to aid a court in determining the
reasonableness of any such fee. In support of these factors, Command has attached
Affidavits of Craig J. Robichaux31 and Edward Laperouse32 giving a precise breakdown
of the attorney time spent as well as detailing the Johnson factors.
Command maintains that the terms of its subcontract with Sun mandate an award
of attorneys’ fees to Command. Command cites Section 11 of the subcontract which
states:

“In the event of a dispute, the prevailing party shall be entitled to the

reimbursement of all attorney fees involved.”33 This contractual provision is the “law of
the parties” pursuant to La. Civ. Code art. 1983.34
Further, Command claims it is undisputed that it is the “prevailing party” in light of
the jury’s verdict. Command notes that the jury specifically found that Sun defaulted on

28

Because the Court finds that Command is entitled to attorney fees and costs pursuant to the contract,
the Court does not address Command’s arguments regarding its statutory entitlement to same.
29
Command cites a federal Fifth Circuit case interpreting TEXAS law recognizing that, where a prevailing
party in a breach of contract suit seeks attorney fees, an award of reasonable fees is mandatory. Rec. Doc.
No. 150-1,pp. 3-4, citing Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).
30
The twelve factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3)
the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the
attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent,
(7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results
obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case,
(11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).
31
Rec. Doc. No. 150-2.
32
Rec. Doc. No. 150-3.
33
Rec. Doc. No. 150-4, p. 8, Section 11.
34
“Contracts have the effect of law for the parties and may be dissolved only through the consent of the
parties or on grounds provided by law. Contracts must be performed in good faith.” La. Civ. Code art. 1983.
8

its contractual obligations to Command and that Command was not in default of the one
contractual issue raised by Sun, timely payment.35 Command argues that the only claim
on which Sun prevailed was not a contractual claim at all but rather a negligence claim
regarding damage to the conduit. As such, Command contends Sun’s conduit claim falls
outside of the scope of contractual obligations (as a negligence claim) thus removing any
real argument that Command was not the “prevailing party” on the contractual claims.
Indeed, the jury sided with Command on every single contractual claim raised.
Command argues that the jury’s verdict also “implicate[s] additional bases under
the subcontract entitling Command to recover its attorney fees and costs as a result of
Sun’s action and inactions.” 36

In particular, Section 8 of the subcontract allows

Command to recover fees and costs if Sun “fails to remove any improperly filed lien.”37
As the lien remains in place today, and Sun has done nothing to remove or reduce the
lien, Command claims it is entitled to recover attorneys’ fees and costs under this Section
of the subcontract as well. Command even goes so far as to argue that Sun’s sworn
statement under oath that its claim in the amount of $1,012,997.24 was mature, which
was proven false at trial, is a criminal act pursuant to La. R.S. 14:133.38
Additionally, Command claims it is entitled to fees and costs under Section 22.1 of
the subcontract which provides for recovery of “all losses, damages, penalties, and fines,
whether actual or liquidated, direct or consequential, and all reasonable attorneys’ fees
and costs suffered or incurred by [Command] by reason or as a result of [Sun’s] default.”39

35
36
37
38
39

See Rec. Doc. No. 138.
Rec. Doc. No. 150-1, p. 7.
Rec. Doc. No. 150-4, p. 7, Section 8.
This revised statute is entitled “Filing or maintaining false public records.”
Rec. Doc. No. 150-4, p. 10, Section 22.1.
9

Because the jury specifically found that Sun defaulted on its contractual obligations to
Command, Command contends this provision also triggers an award for fees and costs.
Sun contends that Section 11 of the Subcontract does not specify for recovery of
“contractual claims” only by the prevailing party and does not define a prevailing party as
being the party who did not default on the contract. Sun refers to the “prevailing party”
jurisprudence cited in its Post-Trial Memoranda and maintains that Command is not a
prevailing party in this case.
Sun also rejects Command’s contention that it is entitled to attorney fees based on
Section 8 of the Subcontract. Sun contends Command did not make a claim or seek to
have the lien canceled. Further, the jury was not asked, and thus could not find, that
Sun’s lien was improper. The jury was not presented Sun’s exhibits relating to its claims
for several items based on the Court’s previous ruling on the Motion in Limine. Thus,
Sun contends Command is asking the Court to make a finding that it should have
presented to the jury.

Sun quotes Section 8 as follows:

“Under this Subcontract,

Subcontractor reserves the right to file a lien if not paid for work performed.” Command
stipulated that Sun was owed $457,629, and part of Sun’s claim was for those sums for
which it was entitled to file the lien. Thus, Command is not entitled to attorney fees under
Section 8.
The Court finds that Command is the prevailing party for purposes of attorney fees
because Sun achieved no success on contract claims.

Fifth Circuit jurisprudence

supports this finding. In Merritt Hawkins & Associates v. Gresham, in interpreting Texas
law, the court stated as follows:

10

The Texas Supreme Court has explicitly stated that “[a] zero on damages
necessarily zeros out ‘prevailing party’ status.” Although [Plaintiff] received
a judgment that [Defendants] had breached their contracts, [Plaintiff] was
awarded no damages or equitable relief on those claims. The jury's verdict
against Consilium does not entitle [Plaintiff] to attorneys' fees
because Consilium was not a party to the contracts and because the
claim against Consilium was brought in tort, not contract. Thus, the
district court did not abuse its discretion by declining to award [Plaintiff]
attorneys' fees for [Defendants’] breach of contract.40
Accordingly, because only Command achieved success on claims brought
pursuant to the contract, Command is the prevailing party and is entitled to an award of
attorney’s fees. However, with respect to costs, both parties are prevailing parties, as
both Sun and Command achieved some level of success, and the Court finds that an
apportionment of costs is proper. Relevant jurisprudence supports the Court’s findings
as set forth below.
In Weiser v. Horace Mann Ins. Co.,41 the plaintiff achieved only partial success on
his claims. The court reduced the award of costs, stating:
In this case, the Court exercises its discretion and denies a full award of
pre-offer costs to the prevailing party, Weiser. First, Weiser's recovery was
significantly less than his initial claim for damages. See Champion Produce,
Inc. v. Ruby Robinson Co. ., Inc., 342 F.3d 1016, 1023 (9th Cir.2003). In his
post-trial proposed findings of fact and conclusions of law, Weiser sought
$220,651.03 in breach of contract damages and $300,000 in general
damages. His ultimate recovery of $4,079.42 is clearly a small fraction of
his claimed damages. …
Rather than denying all litigation costs, however, the Court, recognizing that
Weiser was partially successful in this litigation, makes a partial award of
costs. See, e.g., Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234 (10th
Cir.2001) (“[I]n cases in which the prevailing party has been only
partially successful, some courts have chosen to apportion costs
among the parties or to reduce the size of the prevailing party's award
to reflect the partial success.”); cf. United States v. Terminal Transport
40
41

861 F.3d 143, 156-57 (5th Cir. 2017)(emphasis added)(internal citations omitted).
No. 06-9080, 2009 WL 5194972 (E.D. La. May 15, 2009)(emphasis added).
11

Co., Inc., 653 F.2d 1016, 1021 (5th Cir.1981) (upholding award of one-half
of special master's cost to non-prevailing party). Accordingly, subject to any
reduction in compensable costs by the Clerk of Court, Weiser may recover
a maximum of twenty percent of his pre-offer costs, excluding any costs
associated with Townsend.42
Further, the district court in Johnson v. Big Lots Stores, Inc., recognizing that both
the plaintiff and a defendant were prevailing parties, held that: “As both parties have
prevailed in some sense in this case, the Court finds it necessary to tax the costs
equitably.”43
Therefore, the Court finds that Command is entitled to an award of attorney’s fees
and an award of costs proportionate to the partial success achieved in this matter,
awarding Command 75% of the costs requested as adjusted below. The Court now
turns to the reasonableness of the requested fees and costs.
2. Reasonableness of Fees and Costs
In the Fifth Circuit, the “lodestar” method is used to calculate reasonable attorney
fees. 44 The “lodestar” analysis involves a two-step procedure. 45 Initially, the district
court must determine the reasonable number of hours expended on the litigation and the
reasonable hourly rates for the participating lawyers. Then, the court must multiply the
reasonable hours by the reasonable hourly rates.46 The product is the “lodestar,” which

42

Id. at *3-*4.
639 F.Supp.2d 696, 708 (E.D. La. 2009).
44
In re Fender, 12 F.3d 480, 487 (5th Cir.1994), cert. denied, 511 U.S. 1143, 114 S.Ct. 2165, 128 L.Ed.2d
888 (1994).
45
La. Power & Light v. Kellstrom, 50 F.3d 319, 323-24 (5th Cir.1995) (citing Hensley v. Eckerhart, 461 U.S.
424, 433 (1983)).
46
Id. at 324.
12
43

the court either accepts or adjusts upward or downward, depending on the circumstances
of the case, assessing the factors set forth in Johnson v. Georgia Highway Express, Inc.47
A court's discretion in fashioning a reasonable attorney's fee is broad and
reviewable only for an abuse of discretion, i.e., it will not be reversed unless there is strong
evidence that it is excessive or inadequate, or the amount chosen is clearly erroneous.48
To determine a reasonable fee, a court must provide a concise but clear explanation of
its reasons for the fee award, making subsidiary factual determinations regarding whether
the requested hourly rate is reasonable, and whether the tasks reported by counsel were
duplicative, unnecessary, or unrelated to the purposes of the lawsuit.49 The Fifth Circuit
has noted that its “concern is not that a complete litany be given, but that the findings be
complete enough to assume a review which can determine whether the court has used
proper factual criteria in exercising its discretion to fix just compensation.”50
In assessing the reasonableness of attorneys' fees, the court must first determine
the “lodestar” by multiplying the reasonable number of hours expended and the
reasonable hourly rate for each participating attorney.51 The party seeking the fee bears
the burden of proof on this issue.52
The Court begins by determining whether the number of hours claimed by
Command’s attorneys is reasonable. 53
47

Local Rule 54 provides specific guidance

488 F.2d 714, 717–19 (5th Cir.1974).
Hopwood v. Texas, 236 F.3d 256, 277, n.79 (5th Cir. 2000); Hensley, 461 U.S. at 436–37.
49
Hensley, 461 U.S. at 437–39; Associated Builders & Contractors v. Orleans Parish School Board, 919
F.2d 374, 379 (5th Cir. 1990).
50
Brantley v. Surles, 804 F.2d 321, 325–26 (5th Cir.1986).
51
See Hensley, 461 U.S. at 433; Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 661
(5th Cir. 2002); Associated Builders & Contractors, 919 F.2d at 379; Migis v. Pearle Vision, Inc., 135 F.3d
1041, 1047 (5th Cir.1998); Kellstrom, 50 F.3d at 324.
52
See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); Kellstrom, 50 F.3d at 324.
53
Migis, 135 F.3d at 1047.
13
48

regarding how this burden is met, stating: “the party desiring to be awarded such fees
shall submit to the court a contemporaneous time report reflecting the date, time involved,
and nature of the services performed. The report shall be in both narrative and statistical
form and provide hours spent and justification thereof.”54 “Where the documentation of
hours is inadequate, the district court may reduce the award accordingly.”55
Command argues for the reasonableness of the fees requested, detailing events
surrounding the relationship and litigation going back to the March 2014 job walk-off.
Emphasizing the complexity of the litigation and the myriad of legal issues involved in this
case, Command contends 1,249.50 hours defending Sun’s claims, which is
approximately 35 hours per month, is not excessive. Command also contends that the
change of counsel in late 2016 necessitated a large amount of time for Counsel
Robichaux to get “up to speed” for a quickly approaching march 2017 trial date.
Command further maintains much of this time was unbilled.
Command also contends the results achieved at trial weigh heavily in finding the
requested fee amount reasonable. Command notes that, “[d]espite initiating litigation,
Sun will walk away from trial less than this stipulated amount even without consideration
of Command’s attorney fees and costs.”56 Command claims: “It seems quite obvious
that the work done in defense of Sun’s claims was necessary, reasonable, and done so
at a rate well within the range for attorneys of similar skill and expertise. There is simply
no basis for reduction of attorney fees when it was Sun’s wrongful actions that

54

M.D. La. LR54(b).
Cooper v. Pentecost, 77 F.3d 829, 832 (5th Cir. 1996) (quotation marks omitted); see also Kellstrom, 50
F.3d at 324 (“[A] district court may reduce the number of hours awarded if the documentation is vague or
incomplete.”).
56
Rec. Doc. No. 150-1, p. 11 (emphasis original).
14
55

necessitated them to begin with. Accordingly, Command prays for judgment awarding it
$269,172.50 under the terms of the contract.”57
Command makes this final statement regarding costs:
Given the jury’s determination that Sun defaulted, it is only equitable that
Command be given every benefit of the doubt regarding the
reasonableness of the costs incurred as it was defending a claim by Sun for
well over $1 million tied to an improper lien, which, if not addressed, would
have placed Command in default of its contract with DOTD. After all, the
contract between the parties explicitly provides for “all” costs “suffered or
incurred.”58
Sun opposes Command’s argument that its fee request is reasonable considering
application of the Johnson factors.

Sun contends Command never performed the

reconciliation and initiated litigation by filing suit in the Twenty-third Judicial District Court
(“JDC”), State of Louisiana, in February of 2015. Only after Trafficware filed this lawsuit
did Command dismiss its suit in the Twenty-third JDC so that all claims could be brought
in one forum.

Sun contends Command actually had the obligation to perform the

reconciliation in August 2015, once the project was substantially completed, and pay Sun
the undisputed amounts. At this point, Command’s attorney fees are substantially less.
Sun argues that it took nearly two years later, a four day trial, and “this Court’s persuasion
that undisputed amounts be released,”59 for Command to release $111,000. Sun claims
it was entitled to be paid undisputed amounts in August of 2015; thus, it is unreasonable
to now permit Command to recover attorney fees in the amounts sought after holding
Sun’s money for all these years whilst incurring greater attorney fees.

57
58
59

Id. at p. 12.
Rec. Doc. No. 150-4, p. 8, Section 11.
Rec. Doc. No. 161, p. 3.
15

Sun further contends that the following billing entries appear questionable: John
Milazzo, Jr. charged $240/hour on 3/28/16 but only $200/hour for other entries; there is
no indication who Kellie Taylor or Kari Bergeron are or their years of experience;
Associate Molly Manieri’s hourly charge appears to be the same as the partners; several
entries by Talley Anthony are for reviewing Taylor Porter documents and discussions with
Taylor Porter attorneys; there appears to be a large, unexplained copying charge when
Talley Anthony took over the file which Sun should not be assessed for including
numerous postage and overnight service fees; some entries relate to issues Command
had only with Merchants, and Sun contends it should not be assessed for same; Sun
should not be obligated for time spent with Command’s exhibit presentation coordinator;
and there are “numerous” charges by Taylor Porter for extended periods of time before
Trafficware filed suit and the records contain numerous duplications of charges. Sun
contends that Command’s current counsel have not reduced their fees to take into
consideration unrelated and/or not properly included billings, and “it is quite clear that
present counsel for Command had to duplicate efforts already taken by Command’s prior
counsel in taking over the case in the last hour of the case.”60
As to costs, Sun objects to the reasonableness of Command’s request and
attempts to distinguish Command’s case law.

Sun claims that, in August 2015,

Command had only expended $43,676 in attorney fees and litigation expenses. Even
so, Command did not perform the reconciliation and did not pay Sun the undisputed sums.
At the latest, the amount owed was ascertainable at that point, and if Command is entitled

60

Rec. Doc. No. 151, p. 5.
16

to any costs, it is only those incurred through that time. If the Court finds that Command
is entitled to any costs under Art. 22.1 of the Subcontract, which Sun contests, then it
should only be the percentage of what Command was awarded by the jury that directly
relates to Sun’s default.
The Court has reviewed all of the evidence and affidavits submitted by Command
and has carefully considered the arguments of counsel in memoranda and those made
at oral argument. The Court finds generally that the hours expended and the rates
charged are reasonable considering the complexity of this case and the skill and expertise
of the lawyers as set forth above. The Court, however, agrees with Sun that the hours
billed, particularly in the month that Command changed counsel, should be adjusted
downward. Command’s business decision to change counsel a few months prior to trial
is not the fault of Sun, and Sun should not be responsible for the time required to bring
Command’s new counsel “up to speed” on this case. Applying the Johnson factors, and
considering some evidence of duplicative or excessive billing as set forth by Sun, the
Court finds the total fee request should be adjusted downward by 25 percent (25%).
As to costs, the Court agrees that Sun should not be taxed with the costs of copying
the file to facilitate the change in counsel. Accordingly, this portion of costs will be
subtracted. Further, the law discussed above establishes that both parties achieved
some success and are prevailing parties for purposes of costs. Thus, the Court finds that
the costs should be taxed equitably, reducing Command’s costs request by 25 percent

17

(25%) after removal of the copying charge and the erroneously billed postage amount of
$864.80.61
C. Sun’s Request for Pre-Judgment Interest
Sun seeks prejudgment interest on the amount awarded in the Judgment from, at
the latest, August 2015 when the project was completed and the undisputed amount was
due. Command argues that Sun is not entitled to pre-judgment interest. Command
maintains that the same issue impacted its efforts to reconcile and resolve this case, and
Sun’s position is without merit.

Command argues that the Fifth Circuit, interpreting

Louisiana law, has held that interest is recoverable on a contractual debt from the time
the debt becomes due unless otherwise stipulated.62 The jury found that Sun agreed it
would receive no payment until it had reconciled its account with Command’s damages
and backcharges, a process that Command claims continues to this day. Thus, the
amount owed was not even ascertainable63 to Command until after the jury determined
the amount of damages Sun caused Command due to its default. Thus, Command
contends the Court should deny any request by Sun seeking pre-judgment interest until
such a time that the final amount Command actually owes Sun becomes settled, which
requires resolution of the issues of attorney fees and costs.
Sun rejects Command’s contention that Sun is not entitled to pre-judgment interest
because the amount owed remains unascertainable.

61

Sun claims that Command is

Counsel for Command advised the Court by letter that it has identified $864.80 billed erroneously as
postage costs. See attachment.
62
See Cableguard Sys., Inc. v. Mid-Continent Cas. Co., 73 Fed. Appx. 28, 33 (5th Cir. 2003)(citations
omitted).
63
See IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 93-1637 (La. App. 1st Cir. 5/23/95), 657 So.2d
282, 315 (holding that interest is not due on a debt until the amount is ascertainable).
18

attempting to backcharge Sun for every possible encounter of attorney fees when,
realistically, Command should have performed the reconciliation in August 2015 at the
time that Command had only expended $43,676 in attorney’s fees and litigation
expenses. At the latest, the amount owed was ascertainable at that time, and Sun is
entitled to pre-judgment interest from August 2015 until paid.
In a diversity case, state law governs prejudgment interest.64 Under Louisiana law,
prejudgment interest is a component of compensatory damages.65 Prejudgment interest
is necessary to the plaintiff's full compensation because it represents the “use” value of
the amount owed.66 Indeed, the plaintiff is ordinarily the party prejudiced by a lengthy
litigation process due to the loss of use of its funds.67
Louisiana Civil Code Article 2000 governs the date from which interest begins to
run in this case. It states: “When the object of the performance is a sum of money,
damages for delay in performance are measured by the interest on that sum from the
time it is due ... .” 68 Article 2000 also states that, in the absence of an agreement
between the parties, the rate of interest is fixed by La. R.S. 9:3500.
In Louisiana, a contract claim bears interest from judicial demand or from such
earlier date when the claim became ascertainable and due. 69 Sun’s claim against
Command became due in August 2015 when the project was completed and approved
by the DOTD.

64
65
66
67
68
69

Accordingly, the only remaining issue is whether the amount was

Concise Oil & Gas v. La. Intrastate Gas Corp., 986 F.2d 1463, 1472 (5th Cir. 1993).
Trans–Global Alloy Ltd. v. First Nat'l Bank of Jefferson Parish, 583 So.2d 443, 457–59 (La. 1991).
Id. at 458.
Id.
See Goodman v. Lee, 78 F.3d 1007, 1014 (5th Cir. 1996).
Concise Oil & Gas, 986 F.2d at 1472; Trans–Global Alloy, 583 So.2d at 459.
19

“ascertainable” at that time.
In order for interest to run from the date of breach in Louisiana, it is not necessary
that the precise amount of the damages be liquidated or absolutely certain.70 However,
an amount owed is not “ascertainable” when the determination of the amount is “highly
complicated.” 71 In Martin v. Heublein, the court found this determination to be
“complicated” in a suit for lost profits where the plaintiff relied on expert testimony to
demonstrate the extent of the damages.72 Other courts have found that an amount is not
ascertainable when a “good faith justiciable controversy” existed about the amount due.73
Nevertheless, some courts have found that just because an amount due is
disputed or challenged does not mean that amount is not ascertainable for purposes of
determining prejudgment interest. For example, in Bank One, N.A. v. A. Levet Properties
Partnership,74 parties disputed the overpayment of rent due under a lease contract. The
court stated:
The amount of overpayment was ascertainable in November 2002: the
amount owed under the lease was $20,734.54 per month, and Bank One
erroneously paid $25,301.20 per month. Thus, Bank One overpaid
$4,566.66 each month for a total of $232,899.66. A. Levet's initial
challenge to the amount owed under the lease does not mean that the
amount was not ascertainable for the purpose of calculating
prejudgment interest. See Texaco Trading and Transp., 1996 WL at *3
(finding that defendant's questioning of the accuracy of plaintiff's demand
cannot serve to penalize plaintiff in determination of accrual of interest).
Because Bank One demanded reimbursement for overpaid amounts in
November 2002 and the amount owed was ascertainable at that time,

70

Martin v. Heublein, Inc., 943 F.Supp. 637, 643 (E.D.La. 1996).
Trans–Global, 583 So.2d at 459; Concise Oil & Gas, 986 F.2d at 1472; IP Timberlands Co., 657 So.2d
at 315–16.
72
943 F.Supp. at 643.
73
Nat’l Union Fire Ins. Co. of Pittsburgh v. Circle, Inc., 915 F.2d 986, 992 (5th Cir.1990).
74
No. 03-1373, 2004 WL 1661204 (E.D. La. July 22, 2004).
20
71

interest began to accrue in November 2002.75
Applying the law to the facts of this case, the Court finds that, as of August 2015,
Command should have paid the undisputed amount owed to Sun. While the jury did find
that the subcontract was modified in April 2014 so that Sun would not receive any further
payments until the work was 100% complete and the account reconciled, it also found
that Command did not otherwise have reasonable cause to withhold payments to Sun
after Sun returned in May 2014.

The Court does not deem these two findings

inconsistent considering Command had a legitimate dispute regarding breach of the
subcontract, but Command could have paid the undisputed amount due at the completion
of the project and maintained its claim for breach of contract.
In National Union v. Circle, 76 the Fifth Circuit rejected an argument similar to
Command’s argument that the amount was not due or ascertainable because
reconciliation was required to reach this number.

In National Union, the Assureds

argued that the district court should have awarded interest from the date of judgment, not
from the date of judicial demand. The Assureds also argued that Louisiana jurisprudence
permits such an award only for claims that are fixed and definitive, not for claims like this
one that became fixed only upon judgment.77 The Fifth Circuit disagreed:
We do not read the cases or the Louisiana Civil Code that way. “[L]egal
interest is due at least from the date of judicial demand on a claim for
damages arising out of breach of contract, regardless of whether the precise
amount of the claim is unliquidated, disputed or not ascertainable with
certainty at the time suit is filed.” Indeed, a claim arising out of a breach of
contract, whether liquidated or not, bears legal interest from the date of
judicial demand or from such earlier date when the claim became
75
76
77

Id. at *4 (emphasis added).
915 F.2d 986 (5th Cir. 1990).
Id. at 992.
21

ascertainable and due. In this case, because a good faith justiciable
controversy existed about the amount of additional premiums due, the
amount due under the Retention Premium Agreement was not “liquidated,”
i.e., not fixed or ascertainable. Therefore an award of interest from the date
that the retrospective premium was due would not be proper. The award of
interest from the date of judicial demand, however, was proper.78
Based on the same reasoning and analysis of the National Union court, this Court
finds proper an award of prejudgment interest from the date of judicial demand. The
Court rejects Command’s argument that the account could not have been reconciled and
at least partial payment made to Sun until the completion of all litigation matters.
D. Credit for Merchant’s Cost of Defense Settlement
Prior to trial, Merchants made a payment of $35,000.00 to Command to settle the
claims between Merchtants and Command. Sun claims it is entitled to a $35,000.00
credit in light of this payment by Merchants.

Merchants supplied Sun with the

performance and payment bonds on the project. Sun contends that, pursuant to the
suretyship relationship between itself and Merchants, Merchants was solidarily bound to
Command for Sun’s obligations related to the project. Further, Sun points to Command’s
Cross-Claim against Sun and Merchants wherein Command sought claims from them “in
solido.”79 Sun cites the decision by the Louisiana Supreme Court in Wall v. American
Employers Ins. Co., where in the Court held that, in the case of transaction, compromise,
or settlement between the obligee and one of the solidary obligors, the liability of the other
solidary obligors is reduced in the amount of the proportion of that obligor.80 Sun also
cites the Louisiana Supreme Court’s decision in Fertitta v. Allstate Ins. Co.,81 where the
78
79
80
81

Id. (citations omitted).
Rec. Doc. No. 13, p. 7, ¶ 14.
386 So.2d 79 (La. 1980).
462 So.2d 159 (La. 1985).
22

court held:
Because the two debtors are solidarily bound, the creditor can demand
performance of the entire obligation from either obligor as if he were the
sole debtor. Moreover, payment (or partial payment) to the creditor by one
debtor exonerates the other debtor from having to make that payment to the
creditor (although the debtor who pays may have resulting rights against
the other debtor). Stated otherwise, when the liability is solidary, the creditor
cannot collect more than the full amount of the debt for the single or
combined payments of the debtors.82
Sun contends that a legal compromise occurred when Merchants and Command entered
into a settlement. Accordingly, Sun contends that the $35,000.00 paid to Command by
Merchants relieves Sun of the liability of the $35,000.00 paid by Merchants. Under
Fertitta, Sun argues Command cannot collect more than the amount of debt owed by Sun
and Merchants; thus, Sun is entitled to a credit on the amount Merchants paid to
Command for Merchants’ dismissal from this case.
Command opposes Sun’s claim that it is entitled to a credit for the Merchants
payment and argues that, as surety, Merchants only guarantees Sun’s obligation. In
other words, because Command was holding funds due to Sun for work performed,
subject to Command’s offset claims, the bond would only come into effect in the event
that Command’s backcharges from Sun’s breach of contract exceeded the stipulated
amount of $457,629.53 for Sun’s scope of work. 83

In light of this fact, Command

contends that Merchants approached Command about obtaining a release because
Merchants believed the $35,000.00 it would pay in settlement was less than the cost of a
four-day jury trial.

82
83

Command contends the result of the trial justified Merchants’

Id. at 163.
Rec. Doc. No. 150-1, p. 4, Exhibit C.
23

concerns and also proves there was never a co-existent obligation of Sun’s that
Merchants would be called upon to pay. Thus, Command contends Sun is not entitled
to any credit for Merchants’ cost-of-defense payment on an obligation that was proven
not to exist under the bond.
Further, Command contends that Louisiana law on suretyship also establishes that
Sun is not entitled to a credit for Merchants’ settlement because the law provides that
settlements dealing with the principal automatically benefit the surety, but the converse
is not true.84 Further, Merchants would typically be protected through subrogation; thus,
if Merchants had actually made a payment on Sun’s obligation, Merchants would be able
to fully recover from Sun the extent of its payment under the law of subrogation.
Nevertheless, Merchants specifically waived its right to subrogation from Sun for the
payment made.85 As such, Command argues this waiver ensures that Sun is not as risk
of double-payment. Command further argues that granting Sun a credit when Merchants
never paid any aspect of Sun’s obligation to Command would result in a windfall to Sun
as the language of the release makes clear that “[t]he parties further recognize that the
Payment is not intended by Merchants to release, settle, waive, alter, limit, modify, or
lessen the obligations owed by Sun, if any, to command.”86
The Court finds in favor of Command on this issue. Applying the laws of suretyship
to the facts of this case, in addition to the clear expression of Merchants in the Release
that the settlement was purely a cost-of-defense decision and not intended as payment

84
85
86

Rec. Doc. No. 150-1, p. 18.
Id. at p. 19, Exhibit E. Release of Claim, p. 2.
Id., quoting Exhibit E. Release of Claim, p. 2.
24

of any obligation of Sun to Command, the Court cannot find that Sun is entitled to a credit
for the $35,000.00 Merchants paid to Sun. The Court agrees that, only in the event that
Command was awarded an amount greater than the amount remaining on the
subcontract would Merchants’ bond obligations be triggered. This did not happen, and
Sun is not entitled to a credit for Merchants’ settlement payment.
III.

CONCLUSION
For the reasons set forth above, the Motion for Judgment as a Matter of Law Under

Rule 50(b) or Alternatively for a New Trial Under Rule 5987 by Command is DENIED.
The Motion For Attorney Fees and Motion to Tax Costs88 is granted as adjusted by the
Court’s ruling. Sun is awarded pre-judgment interests in accordance with the Court’s
ruling; however, Sun is denied a credit for Merchants’ settlement payment as set forth
above.
The parties shall submit a proposed Order awarding these itemized amounts in
accordance with the Court’s ruling on or before November 3, 2017.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on October 24, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

87
88

Rec. Doc. No. 156.
Rec. Doc. No. 150.
25