                                                  United States Court of Appeals
                                                           Fifth Circuit
                                                        F I L E D
            UNITED STATES COURT OF APPEALS
                                                         June 16, 2006
                   FOR THE FIFTH CIRCUIT
                                                    Charles R. Fulbruge III
                                                            Clerk


                       No. 05-60426




WEST IMPLEMENT COMPANY INC,
A Corporation,
                         Plaintiff-Counter Defendant-
                         Appellant,

                            v.

DEERE & COMPANY; ET AL,
                           Defendants,

DEERE & COMPANY,
                           Defendant-Counter Claimant-Appellee,

                      - - - - - - - -

DEERE & COMPANY,
                           Plaintiff-Counter Defendant-Appellee,

                            v.

REX MORGAN; ET AL,
                           Defendants,

WEST IMPLEMENT COMPANY INC,
A Corporation,
                         Defendant-Counter Claimant-Appellant.




     Appeal from the United States District Court
        for the Northern District of Mississippi
                      2:04-CV-136
Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant West Implement Company argues that the district

court erred in granting summary judgment in favor of Appellee Deere

& Company with respect to its breach of fiduciary duty claim.

Assuming arguendo that a fiduciary relationship existed between the

parties, because West has not raised a genuine issue of material

fact regarding whether Deere’s conduct violated any of their

agreements, no breach was demonstrated.          See Carter Equipment

Company v. John Deere, 681 F.2d 386, 392 n.14 (5th Cir. 1982)

(“activity in conformance with the terms of the contract cannot

amount to misconduct that constitutes a breach of a fiduciary

duty”) (citation omitted).   The district court properly granted

summary judgment as to the breach of fiduciary duty claim.

     West next argues that the district court erred in allowing

Deere to present its case in chief first.       We find that West has

failed to show that the court abused its broad discretion in

controlling the order of proof.       See Huddleston v. United States,

485 U.S. 681, 690 (1988).

     Finally, West argues that the district court erred in awarding

attorney’s fees to Deere because although the jury could have

awarded punitive damages, it declined to do so. Contrary to West’s


     *
        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.

                                  2
argument otherwise, the Mississippi Supreme Court has made clear

that so long as an award of punitive damages would be proper, “such

an actual awarding of punitive damages is not a prerequisite for

the awarding of attorney fees.”       Aqua-Culture Technologies, Ltd.

v. Holly, 677 So.2d 171, 185 (Miss. 1996).      The district court’s

award of attorney’s fees is affirmed.



     AFFIRMED.




                                  3
