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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 17-13617; 17-14426
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cv-00010-LGW-RSB
INTERNATIONAL AUTO LOGISTICS, LLC,
Plaintiff-Counter Defendant -
Appellee,
versus
VEHICLE PROCESSING CENTER OF FAYETTEVILLE, INC.,
Defendant-Counter Claimant -
Appellant,
BRETT HARRIS, et al.,
Defendants.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
________________________
(June 1, 2018)
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Before MARCUS, ROSENBAUM and HULL, Circuit Judges.
PER CURIAM:
In this breach of contract dispute, defendant Vehicle Processing Center of
Fayetteville, Inc. (“VPCF”) appeals from various orders of the district court, which
granted plaintiff International Auto Logistics, LLC’s (“IAL”) motion for summary
judgment, its motion for attorney’s fees and costs, and its motion for an amended
judgment to offset competing awards. After careful review of the record and the
briefs, we affirm those orders and the entry of final judgment in favor of the
plaintiff IAL in the amount of $19,965.82 against the defendant VPCF.
I. BACKGROUND
A. The GPC III Contract
Plaintiff IAL is a government contractor that provides shipping and delivery
services. In early 2013, IAL began competing for a government contract known as
the “GPC III Contract.” The GPC III Contract involved shipping and storing
privately owned vehicles for eligible military service members and Department of
Defense civilian employees. In preparing its bid, IAL approached several
subcontractors, including defendant VPCF, about providing vehicle-processing and
-storage services under the GPC III Contract. IAL and VPCF eventually agreed
that, if IAL was awarded the contract, VPCF would operate a vehicle-storage
facility in South Carolina as a subcontractor for IAL.
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In October 2013, the government notified IAL that its proposal was selected
for the GPC III Contract.
B. The Subcontractor Agreement
Consequently, IAL entered into a Subcontractor Agreement with VPCF to
operate a vehicle storage facility (the “Agreement”). On March 28, 2014, VPCF
executed the Agreement, and on April 9, 2014, IAL executed it too. The
Agreement set forth VPCF’s duties and responsibilities in Exhibit A and VPCF’s
compensation in Exhibit B. The Agreement did not permit amendments without
the express written authorization of both parties.
As to duties, VPCF was required to “[p]erform the necessary functions to
establish, staff and operate” a vehicle-storage facility. Likewise, VPCF was
required to comply with federal law, including applicable “labor practices and
wage determinations.”
As to costs, the Agreement provided that “[e]ach party shall bear all costs,
expenses, risks and liabilities incurred by it arising out of or relating to its
obligations, efforts or performance.” The Agreement also stated that VPCF would
handle “[a]ll necessary cost to fulfill [its] obligations” under the Agreement.
As to compensation, the Agreement provided that “[n]either party shall have
any right to any reimbursement, payment or compensation of any kind from the
other,” except as provided in Exhibit B or by consent of the parties. In turn,
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Exhibit B to the Agreement set forth the amounts for VPCF’s compensation in a
rate schedule dated April 9, 2014. With respect to vehicle storage, IAL agreed to
pay VPCF a monthly per-vehicle rate that accounted for VPCF’s costs of
operation. Exhibit B’s rate schedule listed the costs that the parties expected
VPCF to pay, which included, inter alia, facility leasing, utilities, labor, supplies,
and other costs. The Agreement required that IAL pay VPCF within five business
days of when IAL received payment from the government.
As to termination, if VPCF failed to perform or “endanger[ed] performance
of the GPCIII contract,” the Agreement permitted IAL to terminate after a notice
of default and a ten-day period for VPCF to cure. If the Agreement was terminated
for VPCF’s default, the Agreement entitled IAL to “excess costs to remediate
damages caused by [the] default.” Likewise, “[i]n any action initiated by either
party” for injunctive relief or “otherwise to prevent irreparable harm,” the
Agreement entitled the prevailing party to recover expenses, including reasonable
attorney’s fees.
C. Incumbent-Contractor Protest and the Chester Facility
Shortly after the government notified IAL that it was selected for the GPC
III Contract, the then-incumbent contractor protested the award to IAL by filing
with the Government Accountability Office. Pending resolution of this protest, the
government stayed IAL’s performance under the GPC III Contract. During this
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time, IAL attempted to find a suitable location for VPCF’s vehicle storage facility,
but both IAL and VPCF were cautious not to sign a lease until the government
approved IAL’s contract award. On May 1, 2014, after the previous contractor’s
protest ended, the government directed IAL to begin performance.
But, by the time this occurred, many of the locations previously identified
for VPCF’s vehicle-storage facility were no longer available. Eager to begin the
GPC III Contract, and facing limited options, IAL chose a facility in Chester,
South Carolina for VPCF’s operation (the “Chester Facility”).
As stated above, under Exhibit B and the Agreement generally, VPCF was
expected to lease the facility for its vehicle storage operation. However, when
VPCF attempted to lease the Chester Facility, the landlord insisted on a thorough
and lengthy vetting process, and, in any event, VPCF did not have the funds to post
the security deposit. Because of the delay already suffered, IAL ended up leasing
the Chester Facility with the understanding that the leasing costs would be offset
from VPCF’s compensation, which accounted for these costs. On May 1, 2014,
VPCF began performing under the Agreement.
D. VPCF’s Labor Violation, IAL’s Cure Notice, and VPCF’s Response
In September 2014, IAL discovered that VPCF was not performing all of the
required maintenance on stored vehicles and was not paying its employees
consistent with federal law. VPCF maintained that the condition of the Chester
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Facility made it impossible to store vehicles properly and that this also resulted in
financial issues that complicated VPCF’s operation.
On October 9, 2014, IAL sent VPCF a cure notice, indicating that VPCF
was acting in violation of provisions of federal labor law. Specifically, the notice
stated that a VPCF employee had reported that VPCF was not paying its
employees on time, not allowing employees to cash their checks, not keeping
sufficient funds to clear payroll checks, not providing health and welfare benefits,
and not paying the applicable minimum wage, including a legally mandated fringe
benefit. The cure notice also stated that IAL felt VPCF’s conduct was “a condition
that is endangering the performance of the [GPC III] contract” and warned that
VPCF had ten days to cure these allegations before IAL terminated the Agreement
for VPCF’s default.
IAL’s cure notice also advised VPCF of deficient performance in its
vehicle-storage operation, including insufficient personnel, improper training,
falsifying maintenance records, and a lack of resources and supplies to perform the
necessary maintenance. IAL concluded its cure notice by explaining, in great
detail, how VPCF could become compliant under the Agreement and by giving
notice that one of IAL’s representatives, Rod Mallette, would visit the Chester
Facility on October 23, 2014 to discuss VPCF’s progress.
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On October 17, 2014, VPCF responded to IAL’s cure notice with its own
letter. VPCF’s response letter admitted that the unpaid fringe benefits were an
oversight on its part and that there was some delay in the July 2014 payroll. VPCF
claimed that the other payment allegations were “an isolated incident from one
employee who resigned his position within 2 months of employment.” VPCF’s
response letter avowed that it had “always been [VPCF’s] position to be in
compliance with every area of the business.” It also addressed each specific
allegation by IAL and listed what VPCF had done so far to ensure its compliance.
E. Continued Correspondence and IAL’s Show Cause Letter
IAL continued to monitor VPCF’s conduct and later learned that, despite its
response letter, VPCF had not addressed many of the issues contained in IAL’s
cure notice. In his deposition, Terry Johnson, the President of VPCF, admitted that
VPCF’s payroll was not being paid on time by August 2014 and that some of
VPCF’s employees had been asked not to cash their pay checks. Yet, Johnson
claimed that this was the result of IAL’s failure to pay VPCF. IAL maintained
that, even though it had not received payment from the government, IAL had paid
VPCF $544,934.36 to assist with VPCF’s cash flow problems.
On November 4, 2014, IAL sent VPCF a show cause letter regarding its
response to IAL’s cure notice. IAL’s show cause letter indicated that VPCF’s
response had “fail[ed] to address some of the primary areas of concern” and that its
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plan for compliance was incomplete. The IAL letter warned that VPCF employees
should not be subject to retribution for reporting issues to IAL and also indicated
that, during his visit in late October 2014, IAL’s representative had noted
continuing concerns that were discussed in IAL’s cure notice. IAL’s show cause
letter concluded that IAL was considering termination of the Agreement and that
VPCF had ten days from receipt of the November 4, 2014 letter to present
mitigation evidence regarding its failures to perform.
On November 14, 2014, VPCF responded to IAL’s show cause letter,
indicating every step it had taken to correct the issues mentioned in IAL’s cure
notice. As to the wage issues, VPCF stated that it had notified each employee of
its errors, issued new job offer letters explaining the change, notified employees of
payment, and self-disclosed VPCF’s oversight with the Department of Labor’s
regional office in Raleigh, North Carolina. With respect to performance, VPCF
listed several ways it was attempting to correct its vehicle-maintenance and storage
policies.
F. Termination of the Agreement and Payment Dispute
On December 3, 2014, IAL sent VPCF a notice of termination, effective
December 5, 2014. This termination notice stated that IAL would pay VPCF on a
pro-rata basis for the monthly per-vehicle rate, which was set forth in Exhibit B of
the Agreement, less any excess costs incurred by IAL as a result of VPCF’s default
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in performance. In a separate letter sent that same day, IAL identified the reasons
why it was terminating the Agreement. Those reasons included continued
complaints by employees about payroll and VPCF’s noted failures to perform in
maintenance, recordkeeping, and training. Two days later, IAL took over
operation of the Chester Facility.
After termination of the Agreement, IAL attempted to negotiate a payout
with VPCF by calculating VPCF’s gross revenue earned ($907,172.17) and
offsetting that amount against IAL’s prior payments ($544,934.36) and the
amounts IAL had paid on VPCF’s behalf to third parties ($305,791.23). The
amount paid on VPCF’s behalf included IAL’s payment of the lease rent for the
Chester Facility, as well as utility costs, vehicle-repair costs, landscaping, wireless
radios, and the installation of an electronic gate at the Chester Facility. Based on
its calculations and the offset, IAL offered to pay VPCF $56,446.58 to conclude
their dealings. VPCF rejected IAL’s calculations, including the offset costs.
VPCF claimed that IAL previously had promised to pay VPCF a fixed percentage
of the entire amount that IAL would receive from the government for vehicle
storage under the GPC III Contract, which amounted to several million dollars
more than IAL’s suggested calculations. 1
1
The parties’ briefs on appeal redacted this fixed percentage from the public file but
included it in the copies filed under seal. As such, we refer to a “fixed percentage” instead of
using the actual number of the percentage.
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During these negotiations, IAL began receiving harassing emails and
correspondence from a consultant, Brett Harris, who purported to represent
VPCF’s interests. When intimidation of IAL apparently failed, Harris began a
smear campaign by lodging anonymous complaints against IAL in various state
agencies, contacting IAL’s federal-government customer contact, and threatening
IAL employees with legal action.
G. IAL’s Complaint
On January 15, 2016, IAL filed this lawsuit against defendants VPCF, Brett
Harris, and Brett Harris Consulting. IAL sought a declaratory judgment as to the
amount it owed VPCF and asserted claims for tortious inference, tortious coercion,
and deceptive trade practices against all three defendants. IAL alleged, inter alia,
that—as a result of the dispute over money owed under the Agreement—VPCF
had hired Brett Harris to harass IAL and interfere with IAL’s industry
relationships. Aside from a declaration as to the amount owed to VPCF, IAL also
sought compensatory and punitive damages, a permanent injunction against all
three defendants, and costs and attorney’s fees.
On March 11, 2016, VPCF answered IAL’s complaint and filed a
counterclaim. In its counterclaim, VPCF alleged a claim for breach of contract
against IAL and sought damages of not less than $2,000,000.00, plus reasonable
attorney’s fees. Defendants Brett Harris and Brett Harris Consulting failed to
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answer IAL’s complaint and went into default, and thus the district court entered a
permanent injunction against them.
IAL later stipulated to the dismissal of the harassment-based tort claims
against VPCF. This left two claims in the case: (1) IAL’s declaratory judgment
action against VPCF claiming that IAL owed VPCF only $56,446.58 under the
terminated Agreement; and (2) VPCF’s counterclaim seeking damages in excess of
$2,000,000.00 for IAL’s breach of the Agreement.
H. IAL’s Motion for Summary Judgment
On October 31, 2016, IAL moved for summary judgment against VPCF as
to both IAL’s declaratory judgment action and VPCF’s counterclaim. Relevant to
this appeal, IAL argued that: (1) VPCF breached the Agreement by failing to pay
its employees consistent with federal law, by failing to cure this deficiency within
the time period in the Agreement, and by failing to perform required maintenance
on all stored vehicles; (2) IAL did not breach the Agreement by terminating VPCF
for default after 30 days of VPCF’s failure to cure; and (3) IAL correctly
calculated the maximum amount due to VPCF by subtracting the costs IAL
incurred on VPCF’s behalf from VPCF’s monthly per-vehicle rate under the
Agreement. IAL contended that the maximum amount possibly due to VPCF was
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$59,446.58, which reflected a $3,000 adjustment for lawn care services that IAL
no longer sought to offset from VPCF’s compensation.2
In its response brief, VPCF recounted deposition testimony but simply
argued that IAL had failed to show that it was entitled to summary judgment.
I. District Court’s Order on Summary Judgment
On May 16, 2017, the district court granted summary judgment in favor of
IAL and found that IAL had correctly calculated the amount ($59,446.58) it owed
VPCF under the Agreement.
The district court first determined that VPCF had breached the Agreement.
In more detail, the Agreement required VPCF’s compliance with federal law, and
any failure to comply with federal law authorized IAL to terminate the Agreement
for default after giving VPCF ten days to cure. Under federal law, the Service
Contract Act,
41 U.S.C. § 6701 et seq., requires contractors engaged in
government service contracts to pay certain fringe benefits to their employees. See
41 U.S.C. § 6703(2). The district court found that VPCF had admittedly failed to
provide these benefits to its employees and did not correct the issue within the time
prescribed by the Agreement.
Next, the district court reviewed IAL’s calculations for the amount owed to
VPCF and found that they were “undisputedly proper.” Specifically, the
2
IAL’s complaint alleged the amount due VPCF was $56,446.58, but without the lawn
care offset, the amount became $59,446.58.
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Agreement identified Exhibit B as the sole basis for any party’s right to
“reimbursement, payment or compensation of any kind,” and Exhibit B set forth a
monthly rate schedule for VPCF’s compensation. The amounts in the rate
schedule took into account the various costs that VPCF was obligated to pay under
the Agreement.
The district court found that the language of the Agreement was clear and
unambiguous as to this rate schedule, and thus it rejected VPCF’s unsupported
contention that it was entitled to a fixed percentage of IAL’s revenue for vehicle
storage under the GPC III Contract (which percentage represented nearly all of
IAL’s revenue). The district court explained: (1) that VPCF’s total compensation
was based on a monthly per-vehicle rate; (2) that the reference to a fixed
percentage in the rate schedule was not to IAL’s compensation from the
government, but rather was to a breakdown of VPCF’s own compensation; and
(3) that the fixed percentage represented what percent of VPCF’s total
compensation was for vehicle storage and what percent was for administrative
processing.
With respect to the amounts IAL paid on VPCF’s behalf to lease and operate
the Chester Facility, the district court found that IAL had properly offset these
amounts against what IAL owed VPCF in compensation. In the event of a
termination for default, the Agreement permitted IAL to recover excess costs
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caused by VPCF’s default. To that end, IAL sought leasing and utility costs it had
paid at the Chester Facility, which the district court found were costs assigned to
VPCF under the Agreement and were built into VPCF’s compensation. Similarly,
the district court found that the other items (vehicle repair, landscaping, wireless
radios, and the electronic gate) were properly offset as necessary costs for VPCF to
“fulfill [its] obligations” under the Agreement—namely, to operate the vehicle
storage facility. As to both the declaration sought by IAL and VPCF’s breach-of-
contract counterclaim, the district court entered summary judgment in favor of
IAL. The district court determined that IAL owed VPCF $59,446.58.
Accordingly, IAL effectively prevailed on both its complaint and VPCF’s
counterclaim against IAL.
J. IAL’s Motion for Costs and Attorney’s Fees
On May 30, 2017, IAL moved for costs and attorney’s fees. VPCF opposed
the motion, arguing: (1) IAL was not the prevailing party; (2) the Agreement
provided no basis for awarding fees; (3) IAL never tendered money to VPCF; and
(4) IAL’s requested fees were not specific enough. The district court concluded
that, under the terms of the Agreement, IAL was entitled to recover costs and
attorney’s fees in the amount of $79,412.40.
On July 18, 2017, the district court entered judgment in favor of IAL,
declaring that IAL owed $59,446.58 to VPCF and awarding $79,412.40 in costs
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and attorney’s fees to IAL. VPCF filed a timely notice of appeal, challenging the
district court’s orders on summary judgment and costs and attorney’s fees, as well
as its final judgment.
K. IAL’s Motion to Amend the District Court’s Judgment
Thereafter, pursuant to Federal Rule of Civil Procedure 59(e) and O.C.G.A.
§ 9-13-75, IAL moved to alter or amend the district court’s judgment by setting off
the competing awards for IAL’s attorney’s fees and the amount owed to VPCF,
which would result in a net judgment for IAL in the amount of $19,965.82.
In support of its motion, IAL stated that VPCF was indebted to the Internal
Revenue Service (“IRS”) in the amount of $233,791.65 plus interest and that the
IRS had “already begun collection activities.” Under the district court’s judgment,
IAL would be forced to pay VPCF $59,446.58 but would never see the award of
costs and attorney’s fees of $79,412.40 in return. In its opposition brief, VPCF
argued that IAL’s citation to Georgia law on offsetting judgments was “not
persuasive” and that IAL’s assertion that VPCF was in collections with the IRS
was unfounded.
The district court granted IAL’s motion, subtracted the declaratory judgment
amount from the award of costs and attorney’s fees, and amended the judgment to
reflect an award to IAL in the amount of $19,965.82. VPCF filed an amended
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notice of appeal, adding the district court’s order on IAL’s motion to amend the
judgment and the district court’s amended judgment.
II. DISCUSSION
On appeal, VPCF claims the district court erred on the following five issues:
(1) determining that VPCF breached the Agreement; (2) finding that there were no
disputed issues of material fact; (3) determining the amount that IAL owed VPCF;
(4) awarding attorney’s fees to IAL; and (5) amending its judgment to offset the
awards between IAL and VPCF. VPCF identifies these five issues but its brief on
appeal discusses only the determination as to the amount owed to VPCF and the
award of attorney’s fees to IAL. Therefore, we address only the two issues briefed
by VPCF. 3 See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”); Singh v. U.S. Att’y Gen.,
561 F.3d 1275,
3
It may be that VPCF focuses on these two issues because the other three so clearly lack
merit. For example, as to VPCF’s breach of the Agreement, it is undisputed that VPCF violated
federal law when it failed to pay its employees the required fringe benefits under the Service
Contract Act, which constituted a breach of the Agreement between IAL and VPCF. Likewise,
VPCF failed to cure this mistake within the period provided in the Agreement.
In addition, the terms of the Agreement were clear and unambiguous, and the district
court properly applied them to this dispute when it granted summary judgment in favor of IAL.
VPCF’s brief fails to explain what factual determinations VPCF believes the district court
improperly made.
Further, as to the competing awards, the district court did not err by offsetting these
amounts in its amended judgment. This practice is permitted under Georgia law, and VPCF
provides no authority to the contrary. See O.C.G.A. § 9-13-75 (“One judgment may be set off
against another . . . . The balance on the larger is collectable under execution.”).
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1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an issue exists,
without further argument or discussion, constitutes abandonment of that issue and
precludes our considering the issue on appeal.”).
A. Amount Owed to VPCF
This Court reviews de novo the district court’s grant of summary judgment.
Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227, 1235 (11th Cir. 2016). Likewise,
we review de novo issues of contract interpretation. Nat’l Fire Ins. Co. v. Fortune
Constr. Co.,
320 F.3d 1260, 1267 (11th Cir. 2003).
The Agreement between IAL and VPCF is governed by Georgia law. Under
Georgia law, contract construction begins with determining whether the contract’s
language is clear and unambiguous. See City of Baldwin v. Woodard & Curran,
Inc.,
743 S.E.2d 381, 389 (Ga. 2013). If it is, the court will simply enforce the
contract according to its clear terms.
Id. Unless otherwise noted, the words in a
contract carry their ordinary meanings. Atlanta Dev. Auth. v. Clark Atlanta Univ.,
Inc.,
784 S.E.2d 353, 357 (Ga. 2016). Here, we agree with the district court that
the Agreement was clear and unambiguous.
Nonetheless, VPCF claims that the district court erred: (1) by utilizing the
monthly per-vehicle rate listed in Exhibit B to the Agreement; and (2) by offsetting
VPCF’s compensation based on costs that VPCF was obligated to pay but that IAL
paid on VPCF’s behalf to perform under the Agreement. Also, for the first time on
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appeal, VPCF claims that IAL made these payments voluntarily and has
surrendered its right to recover them under Georgia law. See O.C.G.A. § 13-1-13.
We address only the arguments preserved on appeal, which excludes VPCF’s
argument about the voluntary payment defense. 4 See Access Now, Inc. v. Sw.
Airlines Co.,
385 F.3d 1324, 1335 (11th Cir. 2004) (explaining that we need not
address a claim “raised for the first time on appeal, without any special
conditions”).
The district court properly concluded that VPCF’s compensation was based
on the monthly per-vehicle rate listed in Exhibit B to the Agreement. The
Agreement stated that the “right to any reimbursement, payment or compensation
of any kind from the other” would be governed by Exhibit B or by consent of the
parties. The rate schedule contained in Exhibit B demonstrated that the parties
intended VPCF to receive compensation based on a monthly per-vehicle basis, not
a fixed percentage of IAL’s total revenue for vehicle storage under the GPC III
Contract.5 As the district court properly found, the reference to a fixed percentage
4
Even if we were to address VPCF’s argument regarding the voluntary payment defense,
it is without merit. The Agreement explicitly stated that VPCF was financially responsible for
all “necessary costs” to fulfill its obligations under the contract. So, even if IAL initially paid
these costs to ensure that VPCF could perform under the contract, the Agreement ultimately
placed the responsibility for these costs on VPCF. In any event, the voluntary payment defense
does not apply to payments made “under an urgent and immediate necessity.” See O.C.G.A.
§ 13-1-13.
5
Although not finalized when the Agreement was executed, the rate sheets were provided
long before performance began. Nothing in the record suggests that VPCF ever objected to the
rate schedule, until this dispute arose.
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in Exhibit B was “patently not a promise that VPCF would receive virtually all of
IAL’s government revenue.”
We also agree with the district court’s conclusion that IAL could properly
offset costs paid on VPCF’s behalf. The Agreement contemplated that VPCF
would “[p]erform the necessary functions to establish, staff and operate” a vehicle-
storage facility. In staffing and operating a storage facility, VPCF was expected to
“bear all costs, expenses, risks and liabilities incurred by it arising out of or
relating to its obligations, efforts or performance.” Equally, Exhibit A to the
Agreement stated that VPCF would take on “[a]ll necessary cost to fulfill [its]
obligations.” This same idea was reflected in the rate schedule contained in
Exhibit B.
The monthly per-vehicle rate for VPCF was based on VPCF’s expected
costs, some of which VPCF did not pay. Instead, IAL paid these costs to protect
its own interest in VPCF’s continued performance under the GPC III Contract.
IAL paid VPCF’s vendors to satisfy debts that VPCF had incurred in connection
with its performance under the Agreement so that VPCF could continue to operate
the Chester Facility. Consistent with the Agreement, IAL offset these costs against
VPCF’s compensation, which accounted for these costs being paid by VPCF.
Under these facts, the district court did not err by offsetting the costs that IAL paid
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on VPCF’s behalf or by finding that such an offset was supported by the terms of
the Agreement. We now turn to the issue of attorney’s fees.
B. Award of Attorney’s Fees to IAL
The trial court’s award of attorney’s fees is reviewed under the abuse of
discretion standard. Perez v. Wells Fargo N.A.,
774 F.3d 1329, 1342 (11th Cir.
2014). Under Federal Rule of Civil Procedure 54, “[a] claim for attorney’s fees
and related nontaxable expenses must be made by motion unless the substantive
law requires those fees to be proved at trial as an element of damages.” FED. R.
CIV. P. 54(d)(2)(A).
VPCF argues that IAL was not entitled to attorney’s fees under the
Agreement because IAL did not obtain injunctive relief against VPCF. VPCF also
argues that IAL’s request for attorney’s fees was not supported by competent
evidence and that IAL is entitled to only partial fees because it did not prevail on
all of its claims. See Krayev v. Johnson,
757 S.E.2d 872, 879–80 (Ga. App. Ct.
2014) (noting general rule that fees must be apportioned to claims on which the
plaintiff prevailed). For the reasons that follow, we disagree with both of these
contentions.
First, while it is true that IAL later withdrew its tort claims against VPCF
and did not ultimately obtain injunctive relief against VPCF, nothing in the
Agreement required that IAL obtain injunctive relief in order to recover costs and
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attorney’s fees. The Agreement provided that (1) “[i]n any action initiated by
either party” for injunctive relief (2) the “prevailing party” was entitled to recover
its expenses, including reasonable attorney’s fees. The district court aptly
concluded that IAL was entitled to attorney’s fees by explaining as follows:
Section 26’s two requirements [for attorney’s fees], initiation and
prevailing, are independent of each other. The last paragraph refers to
“any action.” That means the parties intended for it to apply to a
broader suit that grew out of an effort to seek injunctive relief—like
this one. Further, the paragraph refers to any action “initiated” under
section 26, rather than limiting fees to an action resulting in relief
mentioned therein. The paragraph also uses the term “prevailing
party,” without qualification.
Id. Had the parties meant to narrow this
to a party who received injunctive relief against the other, they could
have said so. Turning from text to context, the last paragraph is
physically separate from the third. Under section 26, then, seeking
injunctive relief under the third paragraph opened the door to a
broader case, the prevailing party of which was authorized by the last
paragraph to seek costs and fees. The subcontract lets IAL recover
fees here.
Second, the district court was not required to reduce IAL’s attorney’s fees on
account of IAL’s withdrawn tort claims against VPCF. IAL obtained substantial
relief in this case. See also Hensley v. Eckerhart,
461 U.S. 424, 440,
103 S. Ct.
1933, 1943 (1983) (“Where a lawsuit consists of related claims, a plaintiff who has
won substantial relief should not have his attorney’s fee reduced simply because
the district court did not adopt each contention raised.”). IAL obtained a
declaratory judgment stating that IAL owed VPCF only $59,446.58 and summary
judgment on VPCF’s counterclaim that IAL owed over $2,000,000.00 under the
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Case: 17-13617 Date Filed: 06/01/2018 Page: 22 of 22
Agreement. IAL also obtained a permanent injunction against both Brett Harris
and Brett Harris Consulting for claims related to VPCF’s payment dispute under
the Agreement. See Krayev, 757 S.E.2d at 880 (noting exception to
successful-claim fee apportionment where the “claims are so similar that it would
be too difficult to separate the hours spent on each”). A fee reduction was not
warranted on these facts.
Additionally, we find no deficiency in the evidence supporting IAL’s request
for attorney’s fees. Based on the affidavits and invoices submitted by IAL, the
district court did not abuse its discretion by awarding IAL $79,412.40 in costs and
attorney’s fees.
III. CONCLUSION
For all of these reasons, we affirm the orders and final judgment of the
district court.
AFFIRMED.
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