### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 20495

MOTIS ENERGY, L.L.C.,

Plaintiff

- Appellant

v. SWN PRODUCTION COMPANY, L.L.C.,

Defendant

- Appellee

Appeal from the United States District Court for the Southern District of Texas U S D C No. 4:17

- CV

- 962

Before STEWART, DENNIS, and HAYNES, Circuit Judges

. PER CURIAM: *
Motis Energy, L.L.C. (“Motis”) app eals the district court’s order granting SWN Production Company, L.L.C. (“SWN”) attorney s’ fees. For the reasons set forth below, we AFFIRM the district court’s judgment.
I. Background In 2015, SWN and Motis Energy, a Division of Infinity Oilfield Services, LLC (“Motis

- DI”) , entered into a Commercial Oilfield Services

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appea ls Fifth Circuit 

### FILED April 28, 2020 Lyle W. Cayce Clerk Case: 19-20495 Document: 00515397230 Page: 1 Date Filed: 04/28/2020No. 19

- 20495

2 Agreement (the “ Agreement ”). The Agreement set the terms for services
Motis

- DI supplied to SWN at its drilling sites

. The price terms for these
services were conta ined in rate sheet s

. In 2016, a dispute arose between Motis and SWN; Motis claim ed that SWN had outstanding payments owed to Motis

- DI based on the rate sheet s

. Later that year, Motis

- D I assigned to Motis “all claims, demands, and cause or causes of a ction” that Motis

- D I may have had against SWN. With this assignment of claims, Motis sued SWN in federal district court, alleging among other claims that SWN breach ed the Agreement

. The jury found that although SWN failed to comply with the Agreement , SW N ’s failure was
excused . Th e district court entered a take

- nothing judg ment in favor of SWN. Following the take

- nothing judgment, SWN moved for attorneys’ fees, alleging that it was entitled to recover the fees under the Agreement

. Motis responded, cla iming that SWN had no contractual right to recover attorneys’ fees from Motis because Motis was a nonp arty to the Agreement. The district court granted SWN’s motion in part , 1 finding that SWN was entitled to recover reasonable attorneys’ fees as the prevailing part y in a suit brought
under the Agreement

. Motis timely appealed the district court’s grant of attorneys’ fees to SWN.
II. Discussion The sole issue on appeal is whether SWN was contrac tually entitled to recover attorneys’ fees incurred in the underlying litigation from Motis. Motis argues that it was a non party to the Agreement and thus the attorneys’ fee s provis ion does not apply to it. Motis claims that although Motis

- DI assigned a portion of the Agreement to Motis, that assignment did not subject
Motis to the entirety of the Agreement

.

1 The court denied the full amount of SWN’s requested attorneys’ fees, awarding as

re asonable a reduced amount. Case: 19-20495 Document: 00515397230 Page: 2 Date Filed: 04/28/2020No. 19

- 20495

3 Whether contract language permits an award of attorneys’ fee s is a question of law that we review de novo. Offshore Drilling Co. v. Gulf Copper & Mfg. Corp. , 604 F.3d 221, 227 (5th Cir. 2010). Texas substantive law applies in this diversity case

. See Mathis v. Exxon Corp. , 302 F.3d 448, 461 (5th Cir. 2002). Under Texas law, a prevailing party may recover “attorneys’ fees ‘only if specifically pro vided for by statute or contract.’” Merritt Hawkins & Assocs. v. Gresham , 861 F.3d 143, 155 (5th Cir. 2017) (quoting Epps v. Fowler , 351 S.W.3d 862 , 865 (Tex. 2011)).
Texas law recognizes the doctr ine of direct

- benefits estoppel. In re Weekley Homes, L.P. , 180 S.W.3d 127, 134

– 35 (Tex. 2005). Under this doctrine, a nonparty to a contract may be subject to the contract’s terms if it “consistently and knowingly insists that others treat it as a party” subject to
the contract. 2 Id. (footnotes omi tted). Thus, if a nonparty to a contract “embrace[s] ” the contract, the nonparty is subject to the contract ’s terms. Noble Drilling Servs., Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010). Applying this doctrine, we have held that a nonparty can be subject to a contract’s terms “by knowingly seeking and obtaining ‘ direct benefits ’ from

t hat contract,” “by seeking to enforce the terms of that contract,” or by “asserting claims that must be determined by reference to that contract.” Id.
Here , Motis is a nonparty to the Agreement

. But Motis embraced the Agreement by seeking to enforce its terms. Motis’s argument

 that it did not embrace the entirety of the Agreement because it was assigned the right to
Motis

- DI’s claims, not the entire contra ct

 lacks merit. 3 When a plaintiff

2 Motis argues that this doctrine applies only for the enforcement of forum selection and arbitration clauses. But Motis cites no support for this assertion. In Shakeri v. ADT Security Services, Inc. , for example, we applied t his doctrine to nonparty tort claims under Texas law. 816 F.3d 283, 291 (5th Cir. 2016) (per curiam).

3 Even if we assume arguendo that a party is subject to only those contractual terms it embraced, Motis’s argument fails. Throughout the litigation, Mot is “consistently and Case: 19-20495 Document: 00515397230 Page: 3 Date Filed: 04/28/2020No. 19

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4 sues to enforce a contract to which it was not a party, the Supreme Court of
Texas has held , as have we, that the plaintiff subject s itself to the entirety of
the contract terms. E .g. , Shakeri v. ADT Sec. Servs., Inc. , 816 F.3d 283, 291 (5th Cir. 2016) (per curiam) (holding that because the plaintiffs asserted breach of contract claims under a contract they were not a party to, the plaintiffs were bound by the contract ’s terms); In re FirstMeri t Bank, N.A. , 52 S.W.3d 749, 755

– 56 (Tex. 2001) (holding that by join ing the ir parents’ contract claim, the children “subjected themselves to the contract’s terms” even though they never signed the agreement). Thus, t he doctrine of direct

benefits estoppe l prevents Motis from prevailing on its theory that, as a nonparty, it is not subject to the Agreement ’s attorneys’ fees provision. Motis subjected itself to the attorneys’ fees provision of the Agreement when it sued SWN to enforce the Agreement

. III. Concl usion For the foregoing reasons, we AFFIRM the district court’s grant of attorneys’ fees to SWN.

knowingly” insisted that it could recover attorneys’ fees under the Agreement. See In re Weekley Homes , 180 S.W.3d at 135 (footnotes omitted). Thus, even though Motis was assigned a limited portion of the Agreement, Motis, in seeking attorneys’ fees under the Agreement, sought to “enforce the terms of that contract” provision and thereby became subject to at least the attorneys’ fees provision of the Agreement. See Noble Drilling , 620 F.3d at 473. Case: 19-20495 Document: 00515397230 Page: 4 Date Filed: 04/28/2020