          Case: 14-15336   Date Filed: 01/04/2017   Page: 1 of 20


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15336
                      ________________________

               D.C. Docket No. 8:12-cv-00942-VMC-MAP



UNITED STATES OF AMERICA, for the Use & Benefit of RAGGHIANTI
FOUNDATIONS III, LLC,

                                                           Plaintiff-Appellant,

                                 versus


PETER R. BROWN CONSTRUCTION, INC.,
LIBERTY MUTUAL INSURANCE COMPANY,
SAFECO INSURANCE COMPANY OF AMERICA,

                                                        Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (January 4, 2017)

Before TJOFLAT, ROSENBAUM, and ANDERSON, Circuit Judges.
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PER CURIAM:

      Defendant-Appellee Peter R. Brown Construction, Inc. (“PRBC”), hired

Plaintiff-Appellant Ragghianti Foundations III, LLC (“Ragghianti”), as a

subcontractor to pour concrete for the construction of a military training facility in

San Angelo, Texas. Concluding that Ragghianti did a poor job, PRBC terminated

its contract with Ragghianti for default.       Ragghianti, however, blamed any

deficiencies in the construction project on PRBC’s own shortcomings in

orchestrating the project.   Through this lawsuit, Ragghianti sought to recover

damages in the form of costs it incurred as a result of PRBC’s alleged

mismanagement and negligence.

      Following a bench trial, the district court denied Ragghianti’s claims, except

that it awarded the money Ragghianti was still owed for work performed. Because

Ragghianti cannot show that its subcontract entitled it to the damages it sought, we

affirm the district court’s judgment.

                                        I. Background

      Detailed findings of fact are set forth in the district court’s order. We

include a summary of facts relevant to this appeal.

      On August 16, 2010, the United States Army Corps of Engineers (“Corps”)

contracted with PBS&J Constructors, Inc., to build a military training facility in




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San Angelo, Texas. In compliance with the Miller Act, 40 U.S.C. § 3131,1 PBS&J

obtained payment and performance bonds from sureties Liberty Mutual Insurance

Company and Safeco Insurance Company of America, naming PBS&J as

principal, and PBS&J furnished them to the government.

       PBS&J’s subsidiary, PRBC, entered into a subcontract with Ragghianti on

January 24, 2011. The subcontract required Ragghianti to install the concrete for

the training facility, including its slab on grade foundation. By the subcontract’s

terms, the law of the state in which the project was located—Texas—governed the

relationship, except where otherwise provided.

       From its start, the construction project was beset by obstacles causing delay

and deviation from its ever-amended schedule. First, Ragghianti was not prepared

to mobilize its labor until almost three weeks after the scheduled time due to its

delay in procuring a bond, as required by the subcontract. Then PRBC was not

ready for Ragghianti’s work until over two months after that. Next, unforeseen

soil conditions delayed drilling. When drilling resumed, Ragghianti’s failure to

provide sufficient labor further delayed the project. In late 2011, the Corps issued

PRBC a draft “interim unsatisfactory” review.



       1
         Subsection 3131(b) of Title 40 provides that “[b]efore any contract of more than
$100,000 is awarded for the construction, alteration, or repair of any public building or public
work of the Federal Government, a person must furnish to the Government [a performance bond
and a payment bond], which become binding when the contract is awarded.”
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      Most significantly for purposes of this appeal, the initial concrete pour for

the slab on grade went terribly. Only six of the expected thirteen workers from

Ragghianti’s sub-subcontractor showed up on February 14, 2012, the day of the

pour. Then eight of the fourteen pump trucks transporting concrete turned the

concrete for longer than the 90-minute time limit before use. As a result, much of

the concrete became too dry to finish properly. While Ragghianti blames PRBC in

part for the quality of the concrete it provided and for delaying the pump trucks,

neither party currently disputes that the finish on the slab was of “unacceptable

quality.”

      On February 16, 2012, PRBC issued a failure-to-perform letter related to the

February 14 concrete pour. The failure-to-perform letter provided Ragghianti 48

hours to remove the unsatisfactory concrete, and it requested an action plan for

future slab pours. Ragghianti submitted an action plan the next day, which stated

that “demolition of the existing [slab on grade]” would commence no later than

February 20 and could “arguably” be completed within a week’s time.

      By the morning of February 22, however, Ragghianti’s workers still had not

begun removing the slab, despite having been on premises for most of the

intervening days. So on February 22, 2012, PRBC issued a notice-of-termination

letter, citing Ragghianti’s failure to cure the defective slab on grade, among other

faults. Although Ragghianti employed one worker and one piece of borrowed


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equipment to begin breaking up the concrete slab on February 22 and 23, PRBC

did not consider this a sufficient attempt to complete the necessary remedial work

in a timely manner. PRBC therefore hired other subcontractors to break up the

slab and complete the concrete work for the training facility.

      In April 2012, Ragghianti filed suit. The amended complaint set forth a

breach-of-contract claim against PRBC and an alternative claim for damages in

quantum meruit.     Ragghianti also sought recovery from PRBC’s co-sureties,

Safeco Insurance and Liberty Mutual, under the Miller Act. PRBC counterclaimed

for contractual indemnification and breach of contract.

      Following a five-and-a-half-day bench trial, the district court awarded

Ragghianti damages under the subcontract for its unpaid furnished labor and

materials but denied its other claims. The court entered judgment in favor of

PRBC on both of its claims, an award totaling $435,457 after Ragghianti’s

damages were subtracted from PRBC’s. In addition, the court awarded PRBC

attorneys’ fees, which have yet to be determined.

                                    II. Analysis

      Following a bench trial, we review a district court’s factual findings for clear

error and its legal conclusions de novo. Renteria-Marin v. Ag-Mart Produce, Inc.,

537 F.3d 1321, 1324 (11th Cir. 2008).




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      Ragghianti raises four main issues on appeal. First, Ragghianti argues that

the district court erred in holding that fair-notice requirements under Texas law

were not applicable to the indemnity provisions at issue in the subcontract.

Second, Ragghianti disputes the district court’s determination that Ragghianti was

properly terminated for default rather than at PRBC’s convenience.             Third,

Ragghianti takes issue with the scope of damages that the district court awarded it.

And fourth, Ragghianti challenges the decisions of the district court denying

Ragghianti’s attorneys’ fees and granting PRBC’s attorneys’ fees. We address

each argument in turn.

                                         A.

      We begin with the district court’s determination that Texas’s fair-notice

requirements were not applicable to the indemnity provisions under review. In

Texas, “extra-ordinary risk shifting clauses” that indemnify a party from the

consequences of its own negligence or release a party in advance for liability for its

own negligence must meet two so-called fair-notice requirements. Green Int’l,

Inc. v. Solis, 951 S.W.2d 384, 386 (Tex. 1997). First, the express-negligence

doctrine requires “a party seeking indemnity from the consequences of that party’s

own negligence [to] express that intent in specific terms within the four corners of

the contract.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508

(Tex. 1993) (citation omitted). Second, the terms must appear conspicuously “on


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the face of the contract to attract the attention of a reasonable person when [s]he

looks at it.” Id. (alteration and internal quotation marks omitted).

      The fair-notice requirements are intended to protect an indemnitor from

accidentally agreeing, as a result of deliberately ambiguous and unfortunately

construed contract language, to indemnify the indemnitee for the consequences of

the indemnitee’s own negligence. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d

705, 707-08 (Tex. 1987). They therefore come into play when an indemnitor seeks

indemnity for the results of its own negligence—and only then. See id. at 708

(“Indemnitees seeking indemnity for the consequences of their own negligence

which proximately causes injury jointly and concurrently with the indemnitor’s

negligence must also meet the express negligence test.”) (emphasis added).

Notably, even if a contractual provision shifts liability for a prosecuting party’s

own negligence, the express-negligence doctrine does not apply when the party

does not seek to recover for its own negligence. See MAN GHH Logistics GMBH

v. Emscor, Inc., 858 S.W.2d 41, 43 (Tex. Ct. App. 1993).

      Ragghianti argues that the damages PRBC obtained as a result of

Ragghianti’s breach should be considered attributable to PRBC’s own negligence

because PRBC was, in Ragghianti’s view, at least partly to blame for the deficient

slab on grade. As a result, Ragghianti reasons, the subcontract between PRBC and

Ragghianti was required to comply with the fair-notice requirements in order for


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the district court to have been able to order Ragghianti to indemnify PRBC for the

consequences of PRBC’s alleged own negligence.

      But significantly, neither Ragghianti nor PRBC brought any claim or

counterclaim sounding in negligence. So under the circumstances of this case, the

fair-notice requirements simply do not apply. See Quorum Health Res., L.L.C. v.

Maverick Cty. Hosp. Dist., 308 F.3d 451, 459 (5th Cir. 2002) (noting, under Texas

law, that “[t]he express negligence rule applies if [indemnitee] seeks

indemnification for its own acts of negligence or for the joint or concurrent

negligence of [indemnitee] and [indemnitor]”); MAN GHH Logistics GMBH, 858

S.W.2d at 43 (“[T]he express negligence rule does not apply in this case because

appellants are not seeking to recover for their own negligence.”).

      Ragghianti may not recast its breach-of-contract claim on appeal as one of

negligence. Nor may we accept Ragghianti’s invitation to infer that PRBC must

have been negligent to the extent that Ragghianti was entitled to any damages

under the subcontract.

      Ragghianti nonetheless argues that PRBC’s counterclaims are akin to

negligence claims, citing Ewing Construction Co. v. Amerisure Insurance Co. for

the proposition that in Texas, claims of failure to properly perform under a

construction contract are considered “substantively the same” as claims of




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negligence. 420 S.W.3d 30, 37 (Tex. 2014). Ewing, however, does not help

Ragghianti.

      That case involved a dispute over insurance coverage in which Ewing

Construction Company was sued for breach of contract and negligence, based on

work it had done building tennis courts. Ewing tendered defense of that lawsuit to

its insurance company, and the insurance company denied coverage. As a result,

Ewing filed suit seeking a declaration that its insurance company had breached

duties to defend Ewing and indemnify it for any damages awarded against it in the

underlying lawsuit.

      The policy at issue in Ewing contained a contractual liability exclusion,

which, as relevant in Ewing, excluded coverage for claims for damages based on

an insured’s contractual assumption of liability, except where the insured’s liability

for damages would exist even in the absence of the contract. Id. at 36. The terms

of the contract at issue in Ewing required Ewing to construct the courts “in a good

and workmanlike manner.” Id. Discussing the meaning of this specific contractual

provision, the Texas Supreme Court explained that it imposed no greater obligation

on Ewing than Texas law, through the tort of negligence, otherwise did. Id. at 37.

As a result, the Texas Supreme Court noted, under the contract at issue in Ewing,

the claims for breach of contract and for negligence were necessarily based on the

“same factual allegations and alleged misconduct.” Id. Thus, the Texas Supreme


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Court described the two specific claims at issue in Ewing as “substantively the

same,” for purposes of determining whether the contractual liability exclusion

excluded coverage for each of them. Id. Ewing did not consider and does not

stand for the proposition that a breach-of-contract claim alleging specific

contractual breaches is to be treated as substantively identical to a negligence

claim.

         Because PRBC does not in this action attempt to recover under the

subcontract costs attributable to its own negligence, we need not determine

whether the subcontract explicitly and conspicuously would allow PRBC to do so.2

         Ragghianti attempts to subject the subcontract to the fair-notice requirements

because PRBC sought to recover its defense costs. Ragghianti contends that, under

Texas law, “any indemnity clause that allows assessment of an indemnitee’s

attorneys’ fees against an indemnitor must meet the Express Negligence Doctrine.”

         Ragghianti bases this incorrect proposition on a misreading of Fisk Electric

Co. v. Constructors & Associates, Inc. 888 S.W.2d 813 (Tex. 1994). In Fisk, the

Texas Supreme Court held that an indemnitee could not recover the costs of

defending against a negligence action where the contractual provisions at issue did

         2
          Nevertheless, we note that the district court correctly concluded that the contract
provisions with which Ragghianti takes issue do not purport to shift the risk of PRBC’s
negligence to Ragghianti. Of note, the subcontract provides that “nothing contained herein shall
be . . . construed as an agreement to indemnify anyone for their own negligence once such
negligence has been finally adjudicated by a court of law . . . .” It would therefore be impossible
for PRBC to recover costs attributable to its own negligence under the terms of the subcontract.

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not comply with the express-negligence doctrine. Id. at 815-16. The Fisk holding

is inapposite here, where no negligence claim was brought and defended against.

      The district court correctly held, under Texas law, that the subcontract was

not required to conform to the fair-notice requirements.

                                          B.

      Ragghianti next contests the district court’s determination that Ragghianti

was properly terminated for default rather than at PRBC’s convenience. In support

of its position, Ragghianti makes two essential arguments: first, that the Federal

Acquisition Regulations (“FAR”) entitled it to ten days’ default notice rather than

the two days afforded by the subcontract; and second, that PRBC in any case failed

to comply with the subcontract’s requirement that PRBC give Ragghianti two

days’ notice before terminating the subcontract for Ragghianti’s default.

      Ragghianti contends that the subcontract incorporated 48 C.F.R. § 49.402-3,

a subsection of the FAR that affords a subcontractor notice prior to termination for

default, along with at least ten days in which to cure its failure to perform under the

contract.   In support of this position, Ragghianti points to Exhibit K of the

subcontract, which expressly incorporates specified subsections of the FAR.

Significantly, however, § 49.402-3 is not among those listed.

      Ragghianti maintains that the subcontract nevertheless incorporates

§ 49.402-3, based on the following language: “The following FAR provisions are


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hereby incorporated by reference into this Subcontract, with the same force and

effect as if set forth in full text herein.      The full text can also be accessed

electronically at http://farsite.hill.af.mil and http://www.acqnet.gov/far.” Because

the full text of § 49.402-3 may be accessed on those websites, Ragghianti insists,

the subcontract incorporates its text as well.

      Ragghianti’s suggested reading would require us to ignore the fact that the

subcontract expressly incorporates only selected portions of the FAR, as opposed

to incorporating the FAR as a whole.           It would also render meaningless the

subcontract’s own two-day notice and opportunity-to-cure provisions. See J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (“In construing a

written contract . . . we must examine and consider the entire writing in an effort to

harmonize and give effect to all the provisions of the contract so that none will be

rendered meaningless.”).      We therefore agree with the district court that the

subcontract did not incorporate the FAR’s ten-day notice requirement for

termination by default.

      Next, Ragghianti argues that PRBC’s termination of the subcontract did not

comply with the two-day notice and opportunity-to-cure requirements set forth in

Article 10.1 of the subcontract.      That provision specified PRBC’s remedies,

including terminating the subcontract for default, in the event Ragghianti “fail[ed]

to provide sufficient properly skilled workers, adequate supervision or material of


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the proper quality,” among other things. Article 10.1 also entitled Ragghianti to

written notice of the condition causing the default and two days to cure it or, if that

was not possible, the opportunity for a good-faith demonstration that it was

“attempting to expeditiously resolve the condition.”

      Based on the evidence presented over the course of the five-day bench trial,

the district court found that the February 16, 2012 failure-to-perform letter served

to notify Ragghianti in writing that the slab on grade poured on February 14 was

deficient and needed to be remedied. The district court further determined that

Ragghianti failed to remedy the condition within two days and that it did not even

begin to remedy it until after the morning of February 22—six days after

Ragghianti received the failure-to-perform letter. Then, when Ragghianti finally

began to break up the deficient concrete for removal and replacement on February

22, Ragghianti used only one worker and one piece of equipment (borrowed from

PRBC) to do so. So PRBC issued the notice-of-termination letter, terminating the

subcontract for default, on February 22. Based on these facts, all of which find

support in the record, the district court concluded that Ragghianti received notice

and an opportunity to cure—or to make a good-faith attempt at curing—the faulty

slab on grade in accordance with Article 10.1 of the subcontract. We find no clear

error in any of the district court’s factual findings or in its ultimate conclusion that

PRBC terminated the contract for default.


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      We also agree with the district court that PRBC followed the proper

procedure in terminating Ragghianti’s subcontract for default. Though Ragghianti

argues that the failure-to-perform letter did not satisfy the two-day notice

requirement because it did not specifically mention the possibility of termination,

nothing in Article 10.1 required PRBC’s notice to specify which remedy it would

pursue. Instead, Article 10.1 merely required PRBC to provide notice that one or

more of nine enumerated failures to perform had occurred before it pursued any

available remedy. The letter plainly did that. As for Ragghianti’s contention that it

was entitled to a new two-day notice after it began to break up the concrete on

February 22, nothing in Article 10.1 of the subcontract required PRBC to renew its

notice before invoking termination by default, particularly under the circumstances

here, where Ragghianti effectively did no more than go through the motions of

attempting to cure its deficient performance.

                                         C.

      In its third argument on appeal, Ragghianti takes issue with the scope of

damages that the district court awarded to it.          The district court held that

Ragghianti was entitled to damages for its unpaid furnished labor and materials,

totaling $392,000. But the district court denied Ragghianti’s claim for damages for

unearned lost profits, unabsorbed home office overhead, and increased costs




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attributable to delay. Ragghianti argues on appeal that, under the Miller Act or in

quantum meruit, it is entitled to damages caused by PRBC’s delay.

       Although damages for delay are generally available under the Miller Act,

United States, for Use & Benefit of Pertun Constr. Co. v. Harvesters Grp., Inc.,

918 F.2d 915, 916 (11th Cir. 1990), in this case, the subcontract contained a “no

damages for delay” clause. Such clauses are generally enforceable under Texas

law, see Green Int’l, Inc., 951 S.W.2d at 387, and Ragghianti does not argue

otherwise.

       Instead, Ragghianti points to Section 9 of Exhibit G to the subcontract as

allowing Ragghianti to submit a claim for delay damages.                     Section 9 grants

Ragghianti the same “rights and obligations” as the Construction Manager under

the terms of the Prime Contract.              The Prime Contract, in turn, allows the

Contractor to make a claim for an adjustment in response to the Contracting

Officer’s change orders, and such adjustments include costs imposed by delay. So

Ragghianti contends that it is likewise entitled to delay damages under the terms of

its subcontract. 3

       The district court rejected this argument on two grounds: first, the Prime

Contract does not in fact entitle PRBC to delay damages as Ragghianti claims; and


       3
        We note that the subcontract similarly allows Ragghianti to submit claims to adjust the
subcontract price in response to change orders, and to serve written notice if Ragghianti believes
a change order is warranted.
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second, Ragghianti failed to serve any notice or claim for an adjustment as

required by Articles 9.2 and 9.4 of the subcontract. Because we find no clear error

in the district court’s determination that Ragghianti failed to serve written notice,

we need not consider the first basis for the district court’s rejection of Ragghianti’s

claim.      Under the subcontract, compliance with the notice requirement is a

condition precedent to Ragghianti’s right to an adjustment. See Emerald Forest

Util. Dist. v. Simonsen Constr. Co., 679 S.W.2d 51, 54 (Tex. Ct. App. 1984), writ

ref’d n.r.e. (Mar. 20, 1985) (“When a contract provides for a particular form of

notice, compliance with such provisions is a condition precedent to invoking the

contract rights which are conditioned on the notice.”). Since Ragghianti failed to

provide such notice, the district court correctly denied Ragghianti’s claims for

delay damages under the subcontract.

         Ragghianti also challenges the district court’s determination that Ragghianti

was not entitled to damages in quantum meruit pursuant to the cardinal-change

doctrine.      The cardinal-change doctrine “provide[s] a breach remedy for

contractors who are directed by the Government to perform work which is not

within the general scope of the contract.” Edward R. Marden Corp. v. United

States, 442 F.2d 364, 369 (Ct. Cl. 1971).          A “cardinal change” is one that

“fundamentally alters the contractual undertaking” such that it is “not

comprehended by the normal Changes clause.” Id.


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       Ragghianti argues on appeal that the district court “misconstrued” the

doctrine by looking to the final product rather than to the “entire undertaking of the

contractor” to determine whether any of PRBC’s alterations to the subcontract

wrought a cardinal change. Id. at 370. But the district court specifically concluded

that the changes identified by Ragghianti “were reasonably expected” and did not

“demonstrate that Ragghianti’s undertaking of the Project was materially altered or

that PRBC required work from Ragghianti that was not essentially the same work

as the parties bargained for when the contract was awarded.” So the district court

used the appropriate baseline against which to measure a cardinal change. We find

no error in its analysis.

                                         D.

       Finally, Ragghianti challenges the district court’s denial of Ragghianti’s

attorneys’ fees and granting of PRBC’s attorneys’ fees. We review the district

court’s award and denial of attorneys’ fees for an abuse of discretion. Legg v.

Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005); Florence Nightingale Nursing Serv.,

Inc. v. Blue Cross/Blue Shield of Alabama, 41 F.3d 1476, 1485 (11th Cir. 1995).

We cannot conclude that the district court abused its discretion with respect to

either decision.

       Turning first to the district court’s denial of fees to Ragghianti, Ragghianti

sought and the district court denied attorneys’ fees against PRBC, Liberty Mutual,


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and Safeco Insurance under the Miller Act. Attorneys’ fees may be awarded under

the Miller Act in accordance with an enforceable contractual provision or where

evidence shows the “opponent has acted in bad faith, vexatiously, wantonly, or for

oppressive reasons.” F.D. Rich Co. v. United States for Use of Indus. Lumber Co.,

417 U.S. 116, 129 (1974). Ragghianti has shown neither, so the district court

correctly denied Ragghianti’s request for attorneys’ fees.

        As for Ragghianti’s suggestion that it is entitled to attorneys’ fees against

PRBC for its successful breach-of-contract claim, Ragghianti has waived any such

argument since Ragghianti failed to brief it. See Carmichael v. Kellogg, Brown &

Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009) (“[A] legal claim or

argument that has not been briefed before the court is deemed abandoned and its

merits will not be addressed.” (quotation omitted)); Green Int’l, Inc., 951 S.W.2d

at 389 (“[I]f no one objects to the fact that the attorney’s fees are not segregated as

to specific claims, then the objection is waived.”).

        Nor did the district court abuse its discretion in awarding PRBC attorneys’

fees.    Ragghianti argues that PRBC cannot obtain attorneys’ fees under the

subcontract’s indemnification provisions because they fail to comply with the fair-

notice requirements. As we have explained, however, in light of the causes of

action at issue in this case, the subcontract did not need to comply with the fair-

notice requirements.


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       Ragghianti finally challenges the district court’s order directing PRBC to file

a motion for attorneys’ fees and costs under Federal Rule of Civil Procedure 54,

which Ragghianti argues cannot apply where attorneys’ fees are recovered under

an indemnity provision.          However, Rule 54 does not foreclose motions for

attorneys’ fees provided for by contract.              Capital Asset Research Corp. v.

Finnegan, 216 F.3d 1268, 1269-70 (11th Cir. 2000); see also Richardson v. Wells

Fargo Bank, N.A., 740 F.3d 1035, 1039–40 (5th Cir. 2014). And “district courts

enjoy broad discretion in deciding how best to manage the cases before them.”

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997). We

cannot conclude that the district court erred in directing PRBC to file a post-trial

motion for attorneys’ fees.4

                                      III. Conclusion

       For the reasons stated above, the judgment of the district court is affirmed in

all respects.

       AFFIRMED.




       4
        The district court denied without prejudice PRBC’s post-trial motion for attorneys’ fees,
given Ragghianti’s notice of appeal.
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TJOFLAT, Circuit Judge, concurring:

      For the reasons given in the court’s considered opinion, I concur to affirming

the district court in all respects because Ragghianti cannot show that its

subcontract entitled it to the damages it sought. I write separately to emphasize

that this is a simple dispute between experienced, sophisticated parties who

contracted intelligently and voluntarily, as evidenced by their corporate histories

and renegotiations during the course of dealings. PRBC and Ragghianti entered

into a subcontract with Ragghianti to provide the building foundation, slab on

grade, miscellaneous concrete, and site concrete to the Project. Ragghianti failed

to fully uphold its end of the bargain. As a result, PRBC received damages. Any

inference of Ragghianti exploiting PRBC as a vulnerable, unseasoned entity is

tenuous.




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