                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                      NOVEMBER 8, 2007
                                    No. 07-10055                      THOMAS K. KAHN
                              ________________________                    CLERK


                         D. C. Docket No. 06-00070-CV-KD-B

LANIER CONSTRUCTION, INC.,


                                                                 Plaintiff-Appellee,

                                           versus

CARBONE PROPERTIES OF MOBILE, LLC,

                                                                 Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                   (November 8, 2007)

Before MARCUS and PRYOR, Circuit Judges, and HANCOCK,* District Judge.




       *
          Honorable James Hughes Hancock, United States District Judge for the Northern
District of Alabama, sitting by designation.
PER CURIAM:

      Appellant Carbone Properties of Mobile, LLC (“Carbone”) appeals from the

district court’s final judgment following a bench trial in which the court found

Carbone liable to Lanier Construction, Inc. (“Lanier”) on a work and labor

performed claim, and awarded a judgment for the balance due, in addition to relief

under Alabama’s Miller Act of 12 percent per annum interest and attorneys’ fees.

On appeal, Carbone contends that the district court erred in (1) granting relief

under Alabama’s Miller Act because of the constraints of the law-of-the-case

doctrine and Fed. R. Civ. P. 54(c); (2) excluding evidence as to the reasonable

value of Lanier’s services; and (3) establishing the attorneys’ fee award. After

thorough review of the record, we affirm the district court’s decision in all respects

except we vacate the award of attorneys’ fees, and remand this limited issue to

afford Carbone the opportunity to respond to Lanier’s evidentiary submissions on

the reasonable amount of the fees.

      We review de novo the district court’s application of the law-of-the-case

doctrine. See Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86

(11th Cir. 2004). We review each of Carbone’s remaining claims for abuse of

discretion. See Carter v. Diamondback Golf Club, Inc., 222 Fed. Appx. 929, 931

n.1 (11th Cir. 2007) (reviewing a district court’s application of Rule 54(c) to award



                                          2
unpled damages for abuse of discretion); Hodges v. United States, 597 F.2d 1014,

1018 (5th Cir. 1979) 1 (reviewing a district court’s decision to bar evidence based

on its interpretation of a pretrial order for abuse of discretion); Drill South, Inc. v.

Int’l Fid. Ins. Co., 234 F.3d 1232, 1239 (11th Cir. 2000) (reviewing a district

court’s award of attorneys’ fees for abuse of discretion).

       First, Carbone argues that in light of the law-of-the-case doctrine, the district

court erred by granting Lanier 12 percent interest and attorneys’ fees under the

Miller Act after the court denied Lanier’s motion for leave to amend its complaint

to assert a Miller Act claim.2 We disagree.

       We have held that if a district court decision is interlocutory and subject to

reconsideration, any constraints of the law-of-the-case doctrine are inapplicable.

See Gregg v. U.S. Indus., Inc., 715 F.2d 1522, 1530 (11th Cir. 1983) (“Ordinarily

law of the case applies only where there has been a final judgment and not to

interlocutory rulings.”).     Cf. Toole v. Baxter Healthcare Corp., 235 F.3d 1307,

1315 (11th Cir. 2000) (“‘Since an order granting a new trial is an interlocutory

order, the district court has plenary power over it . . . .’”) (citation omitted); Bon



       1
        As a former Fifth Circuit case decided before October 1, 1981, Bon Air is binding
precedent. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
       2
        The Miller Act, also known as the Alabama Prompt Pay Act, provides for recovery of
the amount owed plus 12 percent interest, reasonable attorneys’ fees, court costs, and reasonable
expenses. Ala. Code 1975 § 8-29-6.

                                                3
Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970) (“because the order

was interlocutory, ‘the court at any time before final decree (could) modify or

rescind it’”) (citation omitted). Here, the district court’s denial of Lanier’s motion

for leave to amend the complaint was simply an interlocutory decision, see Smith

v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978) (characterizing ruling

on motion to amend complaint to include punitive damages as interlocutory order),

which the district court had ample discretion to reconsider. We therefore conclude

that the law-of-the-case doctrine does not apply in this instance.

      Second, Carbone argues that the district court’s award of Miller Act relief

was nonetheless a violation of Fed. R. Civ. P. 54(c), upon which the district court

relied. Rule 54(c), says Carbone, does not permit district courts to grant unpled

relief if that relief is based on an issue not squarely presented and litigated at trial

with the express or implied consent of the parties. We are unpersuaded.

      This Court has held that “issues not raised in the pleadings may be treated as

if they were properly raised when they are ‘tried by express or implied consent of

the parties,’ Federal Rule of Civil Procedure 15(b), or are included in a pretrial

order.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077 (11th Cir. 2003) (emphasis

added) (citing Drill South, 234 F.3d at 1239 (“[W]e do not believe that the district

court abused its discretion in its decision to award Drill South fees despite its



                                           4
apparent failure to plead its entitlement to fees in its cross-claim against

International Fidelity. The pre-trial order in this action clearly stated Drill South’s

intent to recover attorneys’ fees from International Fidelity.”)); State Treasurer of

the State of Michigan v. Barry, 168 F.3d 8, 9-10 (11th Cir. 1999); Ins. Co. of N.

Am. v. M/V Ocean Lynx, 901 F.2d 934, 941 (11th Cir. 1990). Here, Lanier stated

in the joint proposed pretrial order that it sought Miller Act relief -- to wit, it

sought “pre-judgment interest on liquidated damages at the rate of either 12% or

6% per annum and the attorneys’ fees and costs incurred in bringing and

prosecuting this action” -- and, even more notably, Carbone expressly responded in

that order that “Defendant agrees that Plaintiff seeks these types of damages.”

(emphasis added). Lanier plainly included its demand for Miller Act relief in the

joint proposed pretrial order,3 and the district court therefore did not abuse its

discretion in awarding this relief via Rule 54(c).4

       3
          Carbone contends that Lanier did not include its demand for Miller Act relief
specifically in the disputed fact section of the joint proposed pretrial order. However, the
plaintiff’s and defendant’s disputed facts in the “Work and Labor Performed” section of the
order and the “Defendant’s Statement of the Case” section of the order discussed the elements of
Miller Act relief. In light of the wide discretion afforded district courts in construing pretrial
orders, we cannot conclude that the district court abused its discretion in determining that Lanier
sufficiently asserted its entitlement to Miller Act relief in the joint pretrial order. See
Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1334 (11th Cir.
2005) (“A district court has ‘broad discretion’ to construe its own pretrial orders . . . .”).
       4
         In any event, Carbone cannot show that it was prejudiced by the inclusion of Miller Act
relief. A defendant is found to be prejudiced if “the defendant had no notice of the new issue, if
the defendant could have offered additional evidence in defense, or if the defendant in some
other way was denied a fair opportunity to defend.” Cioffe v. Morris, 676 F.2d 539, 542 (11th

                                                 5
       Third, Carbone argues that the district court abused its discretion by

precluding Carbone from introducing evidence at trial as to the reasonable value of

the work performed by Lanier -- the measure of damages for a “work and labor

performed” claim. See Harbert Int’l, Inc. v. Sunbelt Safety & Barricade, Inc., 668

So.2d 848, 850 (Ala. Civ. App. 1995). However, this matter is not properly before

this Court because Carbone failed to make an offer of proof at trial and has not

informed this Court of the substance of any evidence excluded. We have made

clear that we “will not even consider the propriety of the decision to exclude the

evidence at issue, if no offer of proof was made at trial.” United States v. Winkle,

587 F.2d 705, 710 (5th Cir. 1979) (citing Fed. R. Evid. 103(a)(2)).                    Because

Carbone has not indicated what evidence it would have proffered to demonstrate

that the value of Lanier’s services was unreasonable, we cannot find that the

district court abused its discretion in excluding this evidence.

       Lastly, Carbone argues that the district court abused its discretion by setting

the value of the attorneys’ fees award without granting Carbone an opportunity to



Cir. 1982). To show prejudice, Carbone argues that it might have done things differently, but
does not say in any real way how it would have done so. For example, it does not say how
additional damages would have impacted its settlement and litigation strategy, or how additional
discovery would have affected its liability. See, e.g., Baker v. John Morrell & Co., 382 F.3d
816, 832 (8th Cir. 2004) (“aside from Morrell’s bare assertion, we have no reason to believe it
would have been any more inclined to settle this claim irrespective of whether an ICRA claim
was pleaded”). As the Eighth Circuit has held, “we will not permit [Carbone’s] bare assertion of
prejudice to thwart the amendment.” Id.

                                               6
respond to Lanier’s supplemental evidence. “An abuse of discretion occurs if the

judge fails to apply the proper legal standard or to follow proper procedures in

making the determination or bases an award [or a denial] upon findings of fact that

are clearly erroneous.” Drill South, 234 F.3d at 1239 (quoting United States v.

Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999)) (emphasis added). We agree with

Carbone that the district court abused its discretion on this limited issue.

       Here, only after Carbone had opposed Lanier’s initial brief requesting

reasonable attorneys’ fees, Lanier filed a motion supplementing its brief with

evidentiary submissions. Carbone responded by asking the district court to either

deny Lanier’s motion for leave to supplement, or alternatively, to give Carbone an

opportunity to respond. Without deciding whether Carbone should have had the

opportunity to respond to Lanier’s supplemental evidentiary submissions, the

district court granted Lanier’s motion to supplement and entered an award of

attorneys’ fees, costs, and expenses, based on the submissions in that supplement.

       In U.S. v. Skanska USA Bldg., Inc., 209 Fed. Appx. 880, 883-84 (11th Cir.

2006),5 we held that a district court’s decision to rule on an attorneys’ fees motion

without affording the opposing party the opportunity to submit opposition evidence

violated Rule 54(d), which requires the court to afford an opportunity for adversary


       5
         Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not considered
binding precedent, but may be cited as persuasive authority.

                                               7
submissions on an attorneys’ fees motion.       In so doing, the Court rejected the

argument that the error was harmless, because “Skanska could have offered

[evidence] . . . relevant to the fee award.” Id. at 884. Carbone specifically asserts

on appeal that a response was necessary in order for it to submit evidence relevant

to the fee award, including submissions regarding the hourly rates for both

attorneys and the staff, the hours expended generally, the nature of the

time-consuming discovery disputes, the quantity of hours spent on the dismissed

fraud/concealment claims, and whether the supplemental evidence met the burden

of proof.

      Unlike Skanska, the district court here awarded fees pursuant to Rule 54(c),

but we see no basis to hold that a party opposing discretionary relief under Rule

54(c) -- rather than attorneys’ fees pursuant to a motion under Rule 54(d) -- should

not be permitted to respond to the evidence lodged against it. The district court

thus erred in failing to grant Carbone’s request to respond to Lanier’s supplemental

evidence. By failing to “follow proper procedures,” the district court has abused

its discretion, and accordingly we vacate and remand the attorneys’ fees award for

the limited purpose of allowing Carbone to file opposition submissions so that the

district court may re-calculate the award in light of those submissions.

      AFFIRMED in part, VACATED in part, and REMANDED.



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