United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE
for consideration the second motion of counterclaimants, INET
Airport Systems, Inc. ("INET Inc."), and INET
Airport Systems, LLC, as successor in interest to INET
Airport Systems, Inc. ("INET LLC"), (collectively
"INET") for attorney's fees. The court, having
considered the motion, the response of plaintiff, The
Dallas/Fort Worth International Airport Board, the reply, the
record, and applicable authorities, finds that the motion
should be granted.
March 30, 2015, the court signed a memorandum opinion and
order granting in part and denying in part plaintiff's
motion for summary judgment and granting defendants'
motion for summary judgment. Doc. 85. Following the pretrial
conference and further briefing, the court narrowed the
issues to be tried. On June 8, 2015, the court heard evidence
on those issues and, by memorandum opinion and order signed
June 16, 2015, the court awarded INET LLC the sum of $318,
189.4 0 for work performed under the contract with
plaintiff and attorney's fees in the amount of
$975, 539.34 for prevailing on its breach of contract claim
against plaintiff. Doc. 157. A final judgment was signed that
same day. Doc. 158.
appealed and the Court of Appeals for the Fifth Circuit
reversed the grants of summary judgment and vacated the
court's judgment awarding damages and fees.
Dallas/Fort Worth Int'l Airport Bd. v. IMET Airport
Sys., Inc., 819 F.3d 245 (5th Cir. 2016).
Plaintiff sought panel rehearing, which was denied.
Dallas/Fort Worth Int'l Airport Bd. v. INET Airport
Sys., Inc., 821 F.3d 643 (5th Cir. 2016). In
so ruling, the Fifth Circuit noted that issues inadequately
briefed are considered abandoned. 821 F.3d at 644.
it reversed the court's summary judgment rulings and
final judgments, the Fifth Circuit vastly narrowed the issues
to be tried on remand. In particular, the Fifth Circuit held
that the court had "correctly concluded there was no
dispute of material fact regarding whether the plans and
specifications were defective and had to be changed for the
Rooftop Units to function properly." 819 F.3d at 250.
Further, it recognized that the contract required each party
to cooperate with the other. Id. at 250-51. Thus,
the ultimate issue to be resolved on remand was "which
party prevented performance by failing to cooperate in
arriving at a solution once the parties discovered
defects." Id. at 250. The court prepared a
proposed verdict form in keeping with the Fifth Circuit's
directives. Doc. 184. Plaintiff raised numerous objections,
which the court overruled, pointing out the narrow scope of
the matters to be tried. Doc. 188.
court made slight revisions to the proposed verdict form and
provided it to the parties by order signed June 27, 2017.
Doc. 209. Plaintiff again raised numerous objections in a 37
page document filed June 29, 2017, Doc. 211, accompanied by a
65 page appendix. Doc. 212. By order signed July 5, 2017, the
court overruled the objections and made minor changes to the
verdict form. Doc. 228. In particular, the court noted that
plaintiff relied on the "law of the case" in
lodging its objections, whereas the whole point of the
court's proposed verdict form was to adhere strictly to
the law of the case as articulated by the Fifth Circuit. Doc.
228 at 2-3.
prior to trial, plaintiff sought leave to file a supplemental
answer to assert the defense of payment, representing that
plaintiff had tendered to INET LLC "payment which INET
has accepted" and that "[plaintiff's] payment
constitutes full payment and discharge of any indebtedness
owed by [plaintiff] to INET." Doc. 171, Ex. A at 2,
¶ 3. As INET explained in its response to the motion, it
had not accepted any payment from plaintiff. Doc, 175. The
response recited the lengthy history of plaintiff's
attempts to manipulate the proceedings and avoid paying INET
its attorney's fees. INET urged the court to deny the
motion on the grounds of undue delay, bad faith, and
prejudice. Id. The court denied the motion. Doc.
10 and 11, 2017, the court conducted a jury trial. On July
11, 2017, the jury returned its verdict in favor of INET
Inc., finding that, after plaintiff and INET Inc. learned
that the plans and specifications were defective, plaintiff
intentionally conducted itself in such a way that it
prevented plaintiff and INET Inc. from reaching an agreement
about how to address the defects in the plans and
specifications. Doc. 249. On July 12, 2017, the court signed
its order and final judgment awarding INET LLC the sum of
$395, 974.13 plus post-judgment interest thereon and
dismissing with prejudice the claims plaintiff had asserted.
Docs. 255, 256.
26, 2017, INET filed its second motion for attorney's
fees. Doc. 257. Plaintiff filed a document requesting an
opportunity for adversary submission on attorney's fees.
Doc. 260. By order signed July 27, 2017, the court clarified
that it intended to determine the matter of attorney's
fees based on briefs and supporting affidavits or
declarations and did not anticipate taking oral testimony,
although the matter might be set for hearing if the court
determined that a hearing would be helpful. Doc. 261.
Plaintiff filed its response to the motion, Doc. 275, and
appendix in support, Doc. 276. INET filed its reply and
appendix. Docs. 282, 283.
interim, plaintiff appealed from the judgment on the
jury's verdict. Doc. 263. The court determined that it
would hold the matter of attorney's fees in abeyance
pending the appeal since additional fees might be appropriate
depending on the Fifth Circuit's ruling. Doc. 284. After
transmission of the record on appeal, plaintiff filed a
motion to dismiss its appeal, which was granted. Doc. 285.
Apparently, no agreement was reached as to the award of
Merits of the Motion and Plaintiff's Opposition
on the law of the case doctrine, as plaintiff once did, and
the waiver doctrine, INET contends that plaintiff cannot now
relitigate the propriety of the $975, 539.34 initially
awarded as attorney's fees following the first trial in
this action. Plaintiff does not dispute that it did not raise
on its first appeal any issue regarding the propriety of the
amount of the award. Instead, it urges that because the award
was vacated, it is, in effect, a nullity.
of the case doctrine is a complicated one that does not seem
to fit exactly the issue now before the court. See
Medical Ctr. Pharmacy v. Holder, 634 F.3d 830
(5th Cir. 2011). Rather, the waiver doctrine is
applicable. It holds that an issue that could have been, but
was not, raised on appeal is forfeited and may not be
revisited by the district court on remand. Id. at
834. The waiver doctrine is a consequence not of a ruling by
the court of appeals, but of a party's inaction.
Lindquist v. City of Pasadena, 669 F.3d 225, 239
(5th Cir. 2012). "The doctrine promotes
procedural efficiency and 'prevents the bizarre result
that a party who has chosen not to argue a point on a first
appeal should stand better as regards the law of the case
than one who had argued and lost.'" Id. at
239-40 (citation omitted). Here, as in Lindquist,
plaintiff could have attacked the basis for the court's
award of attorney's fees as well as the reasonableness,
necessity, equity, and justice of the award, but failed to do
so. It cannot now raise arguments that could and should have
been raised on the first appeal.
primary objection to an award of attorney's fees to INET
is the contention that § 271.153 of the Texas Local
Government Code does not create a right to recover
attorney's fees. This is the first time that plaintiff
has raised the argument. When the court first considered the
award of attorney's fees, the parties were in accord that
the provisions of § 271, 153 governed. Doc. 157 at 8.
Plaintiff's argument at the time was that attorney's
fees could only be awarded on INET's counterclaim, citing
§ 271.153 as "limiting recovery of fees to those
'awarded in an adjudication brought against a
localgovernmental entity for breach of a
contract.'" Doc. 130 at 6. Plaintiff argued