     Case: 09-31226     Document: 00511833454         Page: 1     Date Filed: 04/24/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           April 24, 2012

                                       No. 09-31226                        Lyle W. Cayce
                                                                                Clerk

MCI COMMUNICATIONS SERVICES, INC.

                                                  Plaintiff - Appellant,
v.

WAYNE HAGAN; JAMES JOUBERT

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-415


Before ELROD and SOUTHWICK, Circuit Judges.*
                        ON PETITION FOR REHEARING
PER CURIAM:**
        The petition for rehearing is GRANTED.                  The prior opinion, MCI
Commc’ns Servs., Inc. v. Hagan, No. 09-31226, slip op. (5th Cir. Mar. 27, 2012),
is WITHDRAWN, and the following opinion is substituted.




       *
        Judge Garwood was a member of the panel at the time of oral arguments. His death
on July 14, 2011, causes us to decide this case by a quorum. 28 U.S.C. § 46(d).
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 09-31226   Document: 00511833454      Page: 2    Date Filed: 04/24/2012

                                  No. 09-31226

      We explained this case’s factual background and the issues involved in a
prior opinion. MCI Commc’ns Servs., Inc. v. Hagan, 641 F.3d 112 (5th Cir. 2011)
(Hagan I). In that opinion, we explained that “because the Louisiana Supreme
Court ha[d] not previously determined what standard of intent is used for
trespass to underground utility cables and this issue is determinative of whether
MCI is entitled to a new trial on its trespass claim,” id. at 113-14, we certified
the following question to the Louisiana Supreme Court under Louisiana
Supreme Court Rule XII:
      Is the proposed jury instruction in this case, which states that “[a]
      Defendant may be held liable for an inadvertent trespass resulting
      from an intentional act,” a correct statement of Louisiana law when
      the trespass at issue is the severing of an underground cable located
      on property owned by one of the alleged trespassors, and the
      property is not subject to a servitude by the owners of the
      underground cable but only to the contractual right to keep it, as an
      existing cable, underneath the property?

 Id. at 116. The Louisiana Supreme Court answered that question in the
negative. MCI Commc’ns Servs., Inc. v. Hagan, 74 So. 3d 1148 (La. 2011)
(Hagan II). Accordingly, the district court did not err in refusing to give MCI’s
requested jury instruction.
      Because the Louisiana Supreme Court answered the certified question in
the negative, we must address MCI’s argument that the district court erred by
awarding Hagan and Joubert attorney fees on the basis of La. Rev. Stat.
§ 40:1749.14(F). Hagan I, 641 F.3d at 118. We review a district court’s decision
to award attorney fees for an abuse of discretion. Volk v. Gonzalez, 262 F.3d 528,
534 (5th Cir. 2001). We review the district court’s interpretation of the statute
giving rise to a request for attorney fees de novo. Id.
      Louisiana courts strictly construe attorney fee statutes “because the award
of attorney fees is exceptional and penal in nature.” Frank L. Beier Radio, Inc.
v. Black Gold Marine, Inc., 449 So.2d 1014, 1015-16 (La. 1984). Under the plain



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  Case: 09-31226    Document: 00511833454     Page: 3    Date Filed: 04/24/2012

                                 No. 09-31226

language of the statute, attorney fees may only be awarded to prevailing
defendant “excavator[s] or demolisher[s]”:
      Should an owner or operator file suit against an excavator or
      demolisher for damages to underground facilities or utilities and the
      court finds in favor of the owner or operator, in addition to damages
      provided for by this Part, the owner or operator shall be entitled to
      recover reasonable attorney fees and costs. If the court finds in
      favor of the excavator or demolisher, the excavator or demolisher
      shall be entitled to recover reasonable attorney fees and costs.

§ 40:1749.14(F). Neither the district court nor the jury found that Hagan or
Joubert was an “excavator or demolisher” under the statute. Indeed, throughout
this litigation, Hagan and Joubert adamantly insisted that they were not
excavators. We take them at their word.
      Accordingly, we VACATE the attorney’s fees awarded to Hagan and
Joubert and AFFIRM the district court’s decision to refuse MCI’s jury
instruction. AFFIRMED as MODIFIED.




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