Centerpoint Energy Houston Electric LLC v. Harris County Toll Road Authority ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 30, 2007
No. 06-20476
Charles R. Fulbruge III
Clerk
CENTERPOINT ENERGY HOUSTON ELECTRIC LLC; CENTERPOINT
ENERGY ENTEX, an Unincorporated Division of Centerpoint Energy
Resources Corp
Plaintiffs-Appellees
v.
HARRIS COUNTY TOLL ROAD AUTHORITY; HARRIS COUNTY
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:03-CV-2296
Before DENNIS and PRADO, Circuit Judges, and ENGELHARDT, District
Judge.*
PER CURIAM:**
This appeal concerns an award of prejudgment interest and attorneys’ fees
to Plaintiffs-Appellees Centerpoint Energy Houston Electric, LLC and
Centerpoint Energy Entex (collectively, “Centerpoint”), stemming from a lawsuit
*
District Judge of the Eastern District of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20476
Centerpoint filed against Defendants-Appellants Harris County Toll Road
Authority and Harris County (collectively, “Harris County”) to recover costs
associated with relocating Centerpoint’s utility facilities. For the reasons that
follow, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2003, Centerpoint filed suit against Harris County, alleging that
Harris County’s construction of the Westpark Tollway in Houston, Texas,
required relocation of Centerpoint’s gas and electric facilities and that Harris
County was required to reimburse Centerpoint for these costs.1 In addition to
seeking relocation costs, Centerpoint sought prejudgment interest and attorneys’
fees. The district court granted summary judgment in Centerpoint’s favor and
awarded relocation costs, but did not award prejudgment interest or attorneys’
fees.
On appeal, this court affirmed the district court’s grant of summary
judgment and award of relocation costs, holding that Centerpoint was an
“eligible utility facility” under section 251.102 of the Texas Transportation Code.
Centerpoint Energy Houston Elec. LLC v. Harris County Toll Road Auth., 436
F.3d 541, 550 (5th Cir.), cert. denied, 126 S. Ct. 2945 (2006). On Centerpoint’s
cross-appeal, which sought to reverse the district court’s denial of prejudgment
interest and attorneys’ fees, this court concluded that the district court failed to
provide any reasoning for its denial. Id. Accordingly, this court vacated the
district court’s judgment as it related to prejudgment interest and attorneys’ fees
and remanded to the district court for reconsideration of those claims. Id. at
551.
On remand, the district court awarded prejudgment interest in the amount
of $764,332.95 and attorneys’ fees in the amount of $156,829.00, finding that
1
Harris County removed the action to federal district court on June 27, 2003.
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No. 06-20476
Centerpoint’s request for these costs was “unopposed” and “undisputed.” Harris
County filed a motion for reconsideration, which the district court denied.
Harris County now appeals the district court’s award of prejudgment
interest and attorneys’ fees. This court has jurisdiction under 28 U.S.C. § 1291.
II. DISCUSSION
A. Standard of Review
We review the district court’s award of prejudgment interest for abuse of
discretion. Jauch v. Nautical Servs., Inc., 470 F.3d 207, 214 (5th Cir. 2006). An
award of attorneys’ fees is also reviewed for abuse of discretion. Garcia v.
Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001). “A district court abuses its
discretion if it bases its decision on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th
Cir. 2005) (internal quotation marks and citations omitted).
B. Analysis
1. Prejudgment Interest
Harris County argues that the district court abused its discretion in
awarding prejudgment interest to Centerpoint because an award of prejudgment
interest is barred by sovereign immunity. Harris County asserts that the
district court erroneously treated the prejudgment issue as undisputed by Harris
County. Instead, Harris County maintains that prior to the first appeal, it
raised its sovereign immunity argument in its September 24, 2004, response to
Centerpoint’s motion for entry of final judgment, placing the issue squarely
before the district court.
Centerpoint responds that Harris County waived its argument on
sovereign immunity because Harris County failed to raise the issue before this
court during the first appeal or before the district court on remand. Centerpoint
contends that although Centerpoint challenged the district court’s denial of
prejudgment interest in the first appeal, Harris County neither responded to this
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No. 06-20476
claim in its brief nor raised sovereign immunity as a defense. In addition,
Centerpoint alleges that on remand to the district court, Harris County did not
respond to Centerpoint’s supplemental request for prejudgment interest.
Because Harris County did not press this argument before the district court or
this court, Centerpoint submits that Harris County has waived its sovereign
immunity argument on appeal.
After reviewing the relevant portions of the record, we agree with
Centerpoint that Harris County abandoned its argument that sovereign
immunity precludes an award of prejudgment interest. Centerpoint’s claim for
prejudgment interest was at issue in the first appeal because Centerpoint cross-
appealed the district court’s denial of prejudgment interest and attorneys’ fees.
In the first appeal, Harris County did not respond to Centerpoint’s arguments
on prejudgment interest. Harris County’s failure to respond prompted
Centerpoint to maintain in its reply brief that Harris County “appear[s] to
concede that [Centerpoint is] entitled to prejudgment interest on a final award
of relocation costs by failing to address this cross-appeal issue in their reply
brief.” This court vacated the district court’s denial of prejudgment interest and
attorneys’ fees and remanded to the district court for reconsideration of those
items.
On remand, the district court ordered that “[Centerpoint] is to supplement,
if necessary, or re-file its requests. Within 10 days of any filing by [Centerpoint],
[Harris County] is to file any response desired.” Centerpoint filed a
supplemental brief reiterating its earlier arguments on prejudgment interest
and repeating its contention that Harris County had conceded Centerpoint’s
entitlement to prejudgment interest by not addressing the claim for prejudgment
interest on appeal. Despite Centerpoint’s allegation that Harris County had
conceded the issue of prejudgment interest by abandoning it in the first appeal,
Harris County did not file a responsive supplemental brief in the district court.
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No. 06-20476
Apparently based on Harris County’s lack of response, the district court awarded
prejudgment interest, finding Centerpoint’s request “unopposed” and
“undisputed.”
In light of these proceedings, the district court did not abuse its discretion
in awarding prejudgment interest based on its view that Centerpoint’s request
was “unopposed” and “undisputed.” Harris County had ample opportunity on
remand to respond to Centerpoint’s arguments in favor of prejudgment interest
and Centerpoint’s allegation that Harris County had conceded the issue by
failing to respond to it in the first appeal. Harris County’s lack of response on
the issue of prejudgment interest on remand, especially in the face of
Centerpoint’s argument on concession, is inexcusable because “[i]f a party wishes
to preserve an argument for appeal, the party ‘must press and not merely
intimate the argument during the proceedings before the district court.’” Keelan
v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005) (quoting N.Y. Life
Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th Cir. 1996)). Harris County did not
even respond, much less press, an argument on sovereign immunity on remand
before the district court. As this court has often warned, “[i]f an argument is not
raised to such a degree that the district court has an opportunity to rule on it,
we will not address it on appeal.” FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.
1994).
That Harris County mentioned the sovereign immunity argument in its
response to Centerpoint’s motion for entry of final judgment on September 24,
2004, is of no consequence. As Harris County made clear at oral argument, its
sovereign immunity argument has been refined since its September 24, 2004,
response. In any event, neither the district court nor this court has a duty to sift
through the pleadings on file in order to find something to support Harris
County’s opposition to Centerpoint’s claim for prejudgment interest. Cf. De la
O v. Hous. Auth. of El Paso, 417 F.3d 495, 501 (5th Cir. 2005) (“Judges are not
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No. 06-20476
like pigs, hunting for truffles buried in briefs.”) (internal quotation marks and
citation omitted).
Moreover, Harris County’s effort to raise the issue on remand in its motion
for reconsideration does not change the conclusion that Harris County
abandoned its arguments on the issue of prejudgment interest. “[G]enerally
speaking, we will not consider an issue raised for the first time in a Motion for
Reconsideration.” Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999); see also Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir. 2004) (“Arguments
raised for the first time in connection with a motion for reconsideration,
however, are generally deemed to be waived.”).
Harris County argues that Centerpoint waived this waiver argument by
not raising it before the district court. But the proceedings indicate otherwise.
From the moment that Harris County failed to oppose Centerpoint’s claim for
prejudgment interest, Centerpoint repeatedly asserted that Harris County had
conceded this issue. Centerpoint made this argument not only before this court
in the first appeal, but also before the district court on remand.
In any event, it was Harris County’s responsibility as the appellant to
ensure that its arguments were preserved for appeal. Cf. Paterson-Leitch Co. v.
Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) (stating that
“[a] party has a duty . . . to spell out its arguments squarely and distinctly. One
should not be allowed to defeat the system by seeding the record with mysterious
references . . . hoping to set the stage for an ambush should the ensuing ruling
fail to suit.”); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)
(recognizing that appellate courts should not permit “fleeting references to
preserve questions on appeal”). Accordingly, we conclude that the district court
did not abuse its discretion in awarding prejudgment interest to Centerpoint.
2. Attorneys’ Fees
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No. 06-20476
Harris County also contests the district court’s award of attorneys’ fees.
As Harris County explains, at the time that this court rendered its decision in
the first appeal, no Texas court had construed “eligible utility facility” under
section 251.102 of the Texas Transportation Code. However, that issue was
recently taken up by the Texas Court of Appeals for the First District in Harris
County Toll Road Authority v. Southwestern Bell Telephone, L.P., No. 01-05-
00668-CV. Harris County asserts that if the state court construes section
251.102 differently than this court did in the first appeal, Harris County will file
a motion requesting that this court recall its mandate and reconsider the case.
Accordingly, Harris County mentions the issue of attorneys’ fees only “to
preserve the issue” should it ultimately prevail on the construction of section
251.102.
Harris County’s arguments on this issue lack merit. Since Harris County
filed its brief, the Texas Court of Appeals issued its opinion in Harris County
Toll Road Authority v. Southwestern Bell Telephone, L.P., No. 01-05-00668-CV,
2006 WL 2641204, at **5-8 (Tex. App.–Houston [1st Dist.] Sept. 14, 2006, pet.
filed), reaching the same construction of section 251.102 as this court on the
meaning of “eligible utility facility.” Even if the Texas Court of Appeals had
construed section 251.102 differently than this court, however, we would have
been precluded by the law of the case doctrine from entertaining Harris County’s
arguments on the legal conclusions reached by a panel of this court in an earlier
appeal. See Breen v. Tex. A&M Univ., 485 F.3d 325, 336 (5th Cir. 2007) (“Under
the law of the case doctrine, the factual findings and legal conclusions of a panel
of this court continue to govern throughout that case; we will not ordinarily
revisit those findings or conclusions on subsequent appeals.”). Because Harris
County has raised no real challenge to the district court’s award of attorneys’
fees, we conclude that the district court did not abuse its discretion in awarding
attorneys’ fees to Centerpoint.
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No. 06-20476
III. CONCLUSION
For the reasons stated above, the district court’s award of prejudgment
interest and attorneys’ fees to Centerpoint is AFFIRMED.
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