Ramey & Schwaller v. Zions Bancorp

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 29, 2024
• Docket: 23-20586
• Status: Unpublished

Opinion

Case: 23-20586 Document: 35-1 Page: 1 Date Filed: 05/29/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-20586 FILED Summary Calendar May 29, 2024 ____________ Lyle W. Cayce Clerk Ramey & Schwaller, L.L.P.,

Plaintiff—Appellant,

versus

Zions Bancorporation NA, doing business as Amegy Bank,

Defendant—Appellee.

______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-2890 ______________________________

Before Dennis, Wilson, and Ramirez, Circuit Judges. Per Curiam: * We are faced with a second appeal in this dispute between a borrower (R&S) and lender (Amegy) stemming from the Paycheck Protection Program (PPP). See Ramey & Schwaller, L.L.P. v. Zions Bancorporation NA, 71 F.4th 257 (5th Cir. 2023). For the reasons that follow, we AFFIRM.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-20586 Document: 35-1 Page: 2 Date Filed: 05/29/2024

No. 23-20586

I. We need not beat a dead horse by repeating the factual background of this case at length. Id. Suffice it to say, on December 10, 2021, the district court issued an order resolving cross-motions for summary judgment filed by both parties. Id. at 261. The district court’s order found Amegy was entitled to summary judgment and, consequently, (1) disposed of the various claims brought by R&S; (2) granted Amegy the remaining amount owed by R&S under the PPP loan, plus interest; (3) and awarded Amegy attorney’s fees in the amount of $132,310.81 pursuant to the fee provisions in the agreement between Amegy and R&S. On December 13, the district court entered final judgment. The final judgment incorporated by reference the district court’s December 10 order granting Amegy’s motion for summary judgment. On January 6, 2022, R&S filed an opposed motion for stay of the district court’s judgment, where it confirmed its understanding of the district court’s judgment as follows: “Th[e] [district] [c]ourt entered Final Judgment on December 13, 2021 against [R&S] for $41,555.97 in compensatory damages and $132,310.81 in attorney’s fees.” On February 28, 2022, R&S filed its original notice of appeal, in which it appealed “all adverse opinions and orders—including, but not limited to, the Memorandum Opinion and Order issued on December 10, 2021 . . . forming the basis of the” district court’s judgment. We affirmed the district court’s judgment in 2023. Id. at 264. We described the relief granted to Amegy as “summary judgment in favor of [Amegy] . . . and [an] award[] . . . [of] damages and attorney’s fees.” Id. at 261. After prevailing on appeal, Amegy applied for and was granted additional attorney’s fees incurred on appeal in the amount of $81,488.00. R&S moved for our reconsideration of the award of additional fees, again recognizing that the district court had awarded Amegy attorney’s fees. We denied that request for reconsideration.

2 Case: 23-20586 Document: 35-1 Page: 3 Date Filed: 05/29/2024

On remand, the district court issued an Abstract of Judgment (Abstract) under Texas law in which the amount of the judgment was correctly shown as $173,866.78. That amount reflects the sum of the compensatory damages awarded to Amegy by the district court ($41,555.97) and attorney’s fees awarded by the district court ($132,310.81). R&S filed an “Emergency Motion to Correct Abstract of Judgment” on September 15, 2023, which was denied on November 8, 2023. The next day, R&S filed a timely notice of appeal from the November 8 order. See Fed. R. App. P. 4(a)(1). In this appeal, R&S argues that the district court never awarded attorney’s fees and that, in any event, Amegy is not entitled to attorney’s fees. II. Contrary to R&S’s assertions on appeal, the district court awarded Amegy compensatory damages and attorney’s fees and then entered final judgment dismissing R&S’s lawsuit in December 2021. R&S filed an appeal with us in 2022, only raising arguments that challenged the award of compensatory damages. Notably, throughout the course of that appeal, R&S repeatedly recognized that the district court had awarded compensatory damages and attorney’s fees. We affirmed the district court in 2023. Any challenge to the award of attorney’s fees was forfeited at that time by failing to brief the issue, see DeVoss v. Southwest Airlines Co., 903 F.3d 487,489 n.1 (5th Cir. 2018), and R&S cannot raise a forfeited argument in a subsequent appeal. Moreover, with respect to R&S’s challenge to the Abstract itself, the district court’s judgment awarded damages and fees by incorporating by reference the December 10, 2021, order. R&S’s sole non-forfeited argument that the district court’s Abstract does not substantially comply with § 52.003 of the Texas Property Code is therefore meritless.

3 Case: 23-20586 Document: 35-1 Page: 4 Date Filed: 05/29/2024

III. For the foregoing reasons, the district court’s November 8, 2023, order is AFFIRMED.