Texas Dept Housing v. Verex Assurance Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 11, 1998
• Docket: 10-11249
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 98-10127 Summary Calendar

TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS, f/k/a TEXAS HOUSING AGENCY,

Plaintiff-Appellant

VERSUS

VEREX ASSURANCE, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas (4:89-CV-515-4)

September 11, 1998

Before DAVIS, DUHÉ and PARKER, Circuit Judges.

PER CURIAM:*

The Texas Department of Housing and Community Affairs, f/k/a/

Texas Housing Agency (“THA”) sued Verex Assurance, Inc., (“Verex”)

claiming coverage of three defaulted loans. The district court

entered a take nothing judgment with respect to all three loans.

This Court affirmed the judgment with respect to two loans and

reversed and remanded with respect to the third (“Abbott”) loan.

On remand the district court entered judgment in favor of THA on

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the Abbott loan, leaving the amount of attorney’s fees to be

determined on motion by THA under Fed. R. Civ. P. 54 (d)(2).

In the Northern District of Texas local rules require that all

opposed motions be “accompanied by a brief setting forth the

movant’s contentions of fact and law ....” U.S. Dist. Ct. Rules

N.D. Tex., L.R. 7.1(d).2 THA filed a motion for attorney’s fees

incurred in the prosecution of its claim on the Abbott loan, which

was not accompanied by a brief as required by Local Rule 7.1(d).

Hence, the district court entered an order unfiling THA’s motion

for attorney’s fees. THA filed a motion to extend time in which to

file a motion and supporting brief for attorney’s fees. The

district court, apparently finding no excusable neglect, denied the

motion for an extension of time. THA filed a motion to reconsider,

which was also denied. THA appeals.

THA argues that the district court’s insistence that a brief

be filed in support of the motion for attorney’s fees was

misplaced, because the final judgment on the Abbott loan had

already determined THA’s right to attorney’s fees, and the only

issue remaining was the factual determination of what portion of

THA’s attorney’s fees were attributable to the claim based on the

Abbott loan. Therefore, THA argues that there were no issues of

law to be briefed, and a brief in support of the motion was not

necessary. Under such circumstances, THA argues that the district

court’s strict adherence to local rule elevated form over substance

2 Local Rule 7.1(d) has since been amended to provide that “[a]n opposed motion must be accompanied by a brief that sets forth the moving party’s contentions of fact and/or law and argument and authorities ....”

2 and deprived THA of its substantive right to attorney’s fees. In

the alternative, THA argues that its failure to comply with Local

Rule 7.1(d) was due to excusable neglect, and therefore, its motion

for an extension of time to file a compliant motion for fees or its

subsequent motion for reconsideration should have been granted.

This Court reviews all the district court rulings challenged

by THA for an abuse of discretion. Victor F. v. Pasadena

Independent School Dist., 793 F.2d 633, 635 (5th Cir.

1986)(district court application of local rules in disposing of

motions reviewed for abuse of discretion); United States v. Clark,

51 F.3d 42, 43 n. 5 (5th Cir. 1995)(district court finding of no

excusable neglect reviewed for abuse of discretion); Latham v.

Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th Cir.

1993)(district court denial of motion for reconsideration reviewed

for abuse of discretion).

The district court’s post-remand opinion and final judgment on

THA’s claim under the Abbott loan did determine the merits of THA’s

claim for attorney’s fees.3 Hence, there was nothing more left to

be determined on THA’s Rule 54 motion for attorney’s fees, save the

amount of those fees. However, contrary to THA’s argument, there

were contentions of law and fact, which necessitated a supporting

3 The district court’s Post-Remand Opinion Regarding Abbott Loan reads in pertinent part that “[i]n accordance with Texas law, Plaintiff is entitled to an award of .... attorney’s fees regarding that claim [on the Abbott loan]. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1986)(providing for reasonable attorney’s fees in suits based upon an oral or written contract) .... The amount of recoverable attorney’s fees will be determined in the manner set forth in Federal Rule of Civil Procedure 54(d)(2).” (emphasis added).

3 brief under Local Rule 7.1(d). Principally, THA did not indicate

to the district court how it should apportion the fees incurred by

THA between the two unsuccessful claims and the claim on the Abbott

loan. The motion itself only asked the district court to determine

the amount of those fees incurred by THA (ostensibly $136,739.50 in

fees and $10,614.05 in court costs) which were attributable to

THA’s claim on the Abbott Loan. THA should have filed a supporting

brief suggesting a method of apportionment, but THA seemed content

to accept whatever method the district court chose. However, it is

not the district court’s responsibility to devise a method of

apportionment which is consistent with the Texas Civil Practice and

Remedies Code. Rather, that is THA’s responsibility, and the very

reason why a supporting brief was necessary. Therefore, we

conclude that the district court did not abuse its discretion by

unfiling THA’s motion for attorney’s fees for lack of a supporting

brief in compliance with Local Rule 7.1(d).

Likewise, the district court did not abuse its discretion by

refusing to allow THA an extension of time to refile an appropriate

motion and supporting brief. Under the Federal Rules of Civil

Procedure:

[w]hen .... an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion .... upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ....

Fed. R. Civ. P. 6(b)(emphasis added). The Supreme Court has noted

that “inadvertance, ignorance of the rules, or mistakes construing

the rules do not usually constitute ‘excusable’ neglect ....”

4 Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380, 392,

113 S. Ct. 1489, 1496, 123 L. Ed. 2d 74 (1993). Nevertheless,

“‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic

concept’ and is not limited strictly to omissions caused by

circumstances beyond the control of the movant.” Id. The

determination of “what sorts of neglect will be considered

‘excusable’ .... is at bottom an equitable one, taking account of

all relevant circumstances surrounding the party’s ommission.”

Pioneer, 507 U.S. at 395, 113 S. Ct. at 1498.

It is clear that THA knew of the requirements of Local Rule

7.1(d) and chose not to comply on the theory that it was not

necessary. That was not neglect, but a calculated choice made upon

a misunderstanding of the requirements of the rule. On these facts

we conclude that the district court did not abuse its discretion in

denying THA’s motion for an extension of time and its subsequent

motion to reconsider. We therefore affirm.

AFFIRMED.