     Case: 11-30441     Document: 00511822879         Page: 1     Date Filed: 04/16/2012




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

                                                                            FILED
                                                                           April 16, 2012

                                       No. 11-30441                        Lyle W. Cayce
                                                                                Clerk

TANGO TRANSPORT, L.L.C.,

                                                  Plaintiff - Appellee
v.

TRANSPORT INTERNATIONAL POOL, INCORPORATED,

                                                  Defendant - Appellant



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:08-CV-559


Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        In this diversity action, Tango Transport, L.L.C., requested a declaratory
judgment against Transport International Pool, Inc. (TIP). TIP challenges both
an adverse partial summary judgment and post bench-trial final judgment. For
the latter, the district court concluded correctly that the contract relied upon by
TIP was partially abrogated and first breached by it. AFFIRMED.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30441    Document: 00511822879     Page: 2   Date Filed: 04/16/2012



                                    No. 11-30441

                                         I.
      In early 2004, Tango and TIP entered into a sale-and-lease-back
agreement involving 125 of Tango’s trailers. Pursuant to a vehicle lease
agreement (VLA), to be governed by Pennsylvania law, the trailers were to be
returned to TIP on 28 February 2007 (February group).
      Later in 2004, Tango and TIP entered into a similar agreement involving
another 259 of Tango’s trailers. That second agreement became part of the VLA,
with these trailers to be returned to TIP on 31 July 2007 (July group).
      Finally, in 2006, Tango and TIP entered into a separate rental agreement
for 81 of TIP’s trailers (TRAC trailers). It had a 39-month term.
      Before the return deadline for the February group, however, compliance
with the VLA’s return provision became impossible because the VLA’s return
location for that group–TIP’s Little Rock, Arkansas, facility–was shut-down. The
deadline for the February group was moved initially to 30 March, but the parties
subsequently reached a new agreement (some terms of which are disputed, as
discussed below) to, inter alia: commingle all of the February and July groups
and return all of those trailers to Tango’s Sibley, Louisiana, facility by 31 July
2007 for retrieval by TIP. (The VLA had provided that the July group was to be
returned to the Sibley facility.)
      TIP later informed Tango that TIP had sold the first 125 trailers to a third
party, which would pick them up in Sibley. But, the third-party purchase fell
through. Tango’s Sibley lot became overcrowded with trailers unretrieved by
TIP, preventing Tango from returning more before the 31 July return date for
all the trailers in the first two groups. Meanwhile, TIP began selling them one-
by-one from Tango’s Sibley lot.
      Despite the new agreement, TIP billed Tango for resulting late returns.
Accordingly, Tango sought a declaration of its rights in federal court. In
response, also in federal court, TIP obtained a writ of sequestration for the

                                         2
   Case: 11-30441    Document: 00511822879       Page: 3   Date Filed: 04/16/2012



                                   No. 11-30441

TRAC trailers. Rental charges, storage fees, attorney’s fees associated with the
sequestration, and trailer-repair damages form the basis of this action.
      Summary judgment was granted against TIP’s claim regarding repair-
damages computation. Tango Transp., L.L.C. v. Transp. Int’l Pool, L.L.C., No.
5:08-CV-559, Mem. Order (W.D. La. 9 Nov. 2009). Following a subsequent five-
day bench trial in June 2010, judgment was entered against TIP, based upon the
district court’s detailed and comprehensive opinion, which concluded that Tango:
did not owe repair damages or delay-rental fees; and was entitled both to
damages for storing the trailers and to attorney’s fees for wrongful
sequestration. Tango Transp., L.L.C. v. Transp. Int’l Pool, L.L.C., No. 5:08-CV-
559, Judgment (W.D. La. 22 Dec. 2010) (Bench-Trial Ruling). Subsequently, a
magistrate judge’s recommended amount of attorney’s fees was adopted by the
district court. Tango Transp., L.L.C. v. Transp. Int’l Pool, L.L.C., No. 5:08-CV-
559, Report and Recommendation (W.D. La. 15 Mar. 2011); Tango Transp.,
L.L.C. v. Transp. Int’l Pool, L.L.C., No. 5:08-CV-559, Attorney’s-Fees Judgment
(W.D. La. 1 Apr. 2011).
                                          II.
      TIP contends the district court erred in concluding: TIP, not Tango,
breached the VLA; and Tango is entitled both to storage fees because of TIP’s
breach and to attorney’s fees for the wrongful sequestration. (TIP also challenges
the adverse summary judgment regarding repair-damages computation. Because
of our related holding in part II.A.2. regarding Tango’s not being liable for
repairs, we need not reach this issue.)
      Bench-trial factual findings are reviewed for clear error; conclusions of
law, de novo. E.g., North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d
910, 915 (5th Cir. 1996); Fed. R. Civ. P. 52(a) (“[R]eviewing court must give due
regard to the trial court’s opportunity to judge the witnesses’ credibility”.). Mixed
questions of law and fact are reviewed de novo. E.g., Bass v. Denney, 171 F.3d

                                          3
   Case: 11-30441    Document: 00511822879      Page: 4    Date Filed: 04/16/2012



                                  No. 11-30441

1016, 1021 (5th Cir. 1999). For this diversity action, Pennsylvania contract law
and Louisiana unjust-enrichment and sequestration law control. Essentially for
the reasons stated by the district court in its opinions, TIP’s claims fail.
                                        A.
                                         1.
      TIP contends: Tango materially breached the VLA by not having ready for
pick up at the Sibley location 125 trailers on 30 March 2007 and 259 trailers on
31 July 2007; and, as a result, TIP is due rental fees for the late trailers and was
excused from further performance under the VLA. See Oak Ridge Const. Co. v.
Tolley, 504 A.2d 1343, 1348 (Pa. Super. Ct. 1985) (material breach of contract
releases non-breaching party from further performance).
      The district court concluded:      the VLA’s return provisions had been
abrogated and replaced with a new return agreement; under it, Tango was
allowed to commingle for return purposes the February and July groups; this
new agreement allowed Tango to return some trailers after the new March
deadline, while returning others before the July deadline; and, regardless of
when trailers were returned, rental payment on the two groups was to stop on
the return dates provided in the VLA. Bench-Trial Ruling at 20-21.
      As employed in the district court’s opinion, “abrogate” means “to abandon”
or, as Black’s Law Dictionary defines it, “to annul”. Bench-Trial Ruling at 20
(citing Parking Auth. of the City of Wilkes-Barre v. Ten E. S. St. Co., 788 A.2d
1096, 1101 (Pa. Commw. Ct. 2001)); Black’s Law Dictionary 7 (8th ed. 2004). The
distinction between abrogation and modification is important for the matter at
hand, because a modification would leave intact portions of the VLA utilized by
TIP in its claims. But, the partial abrogation of the VLA would preclude TIP’s
relying on those provisions and undercut its claims.
      The record supports the district court’s abrogation conclusion. For
example, an 11 April 2007 email from TIP’s account representative states TIP

                                         4
   Case: 11-30441    Document: 00511822879       Page: 5   Date Filed: 04/16/2012



                                   No. 11-30441

would “pull assets from each expiring group–some early since the 259 expire in
Aug 07 and some late since the 125 expire[d] in Feb 07”. A May 2007 email from
that same person states payment by Tango for the February group had ended
and payment for the July group would be for the full term “REGARDLESS of
whether they have been turned in or not”. Among other evidence, these emails
establish the district court did not err in ruling: the parties had abandoned the
VLA’s return provisions; Tango was not in violation of the new agreement when
it did not have 125 trailers ready for pickup on 31 March 2007; and, as a result,
it was not liable to TIP for extra rental fees. Instead, as the district court ruled,
TIP breached the new agreement when it over-billed Tango and failed to pick up
the trailers. As such, Tango’s obligations under the new agreement were
released.
                                         2.
      TIP also contends Tango breached the VLA by not returning the trailers
fully repaired. This contention fails because, as discussed above, we agree with
the district court’s conclusion that the relevant portions of the VLA were
abrogated. The evidence–in particular the communications made to Tango that
the trailers had been sold “as is” to a third party–supports the district court’s
conclusion that all provisions relating to the return of the trailers, including the
provisions relating to their condition, were abrogated.
                                         B.
      TIP claims the storage-fees award is improper because: the VLA remained
in effect, precluding an equitable claim for relief; and the award was not based
upon any evidentiary support.
      As discussed, the relevant portions of the VLA were abrogated. Therefore,
the storage-fees award was not foreclosed by those abrogated provisions.
      Moreover, the evidentiary support for the award was sufficient. The court
used the amount TIP was expected to be unjustly enriched to determine the

                                         5
   Case: 11-30441     Document: 00511822879      Page: 6    Date Filed: 04/16/2012



                                   No. 11-30441

amount of the award. The evidence established: TIP expected to save an
estimated $150,000 in fleet-operating expenses by avoiding transporting the
trailers to a TIP facility; and, concomitantly, Tango’s business operations were
disrupted and it was prevented from bringing in new trailers for return to TIP.
        As the district court concluded, TIP was not justified in failing to pick up
these trailers. Under a quasi-contractual quantum meruit claim, Tango is
entitled to damages for storing them, measured by TIP’s unjust enrichment. See
Gulfstream Serv., Inc. v. Hot Energy Servs., Inc., 907 So. 2d 96, 100 (La. Ct. App.
1989); see also Howell v. Rhoades, 547 So. 2d 1087, 1089 (La. Ct. App. 1989).
                                         C.
        The attorney’s-fees award was rooted in TIP’s wrongful sequestration of
the TRAC trailers. TIP contends the court erred in awarding those fees because:
the writ of sequestration was not wrongful; Tango never sought to dissolve the
writ; it withdrew its claim for sequestration damages; and it never established
either that the fees were paid or that they were associated with dissolving the
writ.
        Tango’s not pursuing damages associated with the writ does not preclude
its recovering attorney’s fees concerning it. In its oral waiver in district court, in
which it only released its claim for damages incurred in connection with the
sequestration because of the difficulty of proof, it explicitly reserved its right to
claim those fees.
        Tango pursued its sequestration claim by reconventional demand (in
essence, it counter-claimed). See Placid Refining Co. v. Terrebonne Fuel & Lube,
Inc., 108 F.3d 609, 611 (5th Cir. 1997) (reconventional demand identical to
counter-claim). As such, TIP’s contention that Tango never sought dissolution
of the writ is incorrect; dissolution is allowed by reconventional demand. La.
Code Civ. Proc. art. 3506.



                                          6
   Case: 11-30441      Document: 00511822879    Page: 7    Date Filed: 04/16/2012



                                  No. 11-30441

      Under this reconventional demand, the district court concluded correctly
that the writ was issued wrongfully. As discussed, Tango was never in breach
of the VLA; and, therefore, the claimed debt which served as the basis for the
sequestration was found never to have existed. In reaching this conclusion, the
district court relied only on “facts known at the time the sequestration was
requested”. Bench-Trial Ruling at 5-16, 24-26. TIP could present no basis for the
writ pursuant to the claimed breach of the VLA because the relevant provisions
were abrogated and Tango was complying with the new agreement. Thus, the
writ’s issuance was wrongful. Upon this determination, the writ was dissolved.
See Luk-Shop, L.L.C. v. Riverwood LaPlace Assocs., L.L.C., 802 So. 2d 1291,
1293 (La. 2002) (when underlying debt is extinguished, writ is dissolved).
      No authority is cited to support TIP’s fees-not-paid contention. Therefore,
it is abandoned. L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106,
113 (5th Cir. 1994).
      TIP’s contention that Tango never established the fees were associated
with dissolving the writ also fails. Again, this action resulted in its dissolution.
Tango’s supporting evidentiary submissions contained customary hourly rates
and other detailed billing information. This evidence was uncontested.
Obviously, objections from fee opponents should be precise. Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988); see also
McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 405 (5th Cir. 1985). TIP did
not object to any item of requested fees; it simply objected to Tango’s entitlement
to them.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.




                                         7
