IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30645

In The Matter of: LILJEBERG ENTERPRISES, INC.,

Debtor,

--------------------

LIFEMARK HOSPITALS, INC.,

Appellant - Cross-Appellee,

versus

LILJEBERG ENTERPRISES, INC.,

Appellee - Cross-Appellant,

_________________________________________________________________

LILJEBERG ENTERPRISES, INC.,

Appellee - Cross-Appellant,

versus

LIFEMARK HOSPITALS, INC.,

Appellant - Cross-Appellee,

_________________________________________________________________

LIFEMARK HOSPITALS, INC.,

Appellant - Cross-Appellee

versus

ST. JUDE HOSPITAL OF KENNER, LOUISIANA, L.L.C.,

Appellee - Cross-Appellant,

_________________________________________________________________

LILJEBERG ENTERPRISES, INC.,

Appellee - Cross-Appellant,

versus

LIFEMARK HOSPITALS OF LOUISIANA, INC.;

LIFEMARK HOSPITALS, INC.;

AMERICAN MEDICAL INTERNATIONAL;

TENENT HEALTHCARE CORPORATION,

Appellants - Cross-Appellees.2 Appeals from the United States District Court

For the Eastern District of Louisiana

August 28, 2002

Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This appeal brings to us three of four consolidated actions

arising from a failed relationship formed to build and manage a

hospital and medical office building in Ken ner, Louisiana, the

latest round in the parties’ protracted litigation.

Following a bench trial of the consolidated cases, the

district court overturned a judicial sale of the hospit al,

reinstated various contracts which defined the financing and lease

of the hospital, and denied the holder of the hospital mortgage a

claim for a deficiency judgment. The court also ruled that, under

a Clinical Pharmacy Management Agreement governing the operation of

the hospital pharmacy and the flow of drugs to the hospital,

Liljeberg Enterprises, Inc. , the hospital pharmacy operator and

principal supplier of drugs to the hospital, was due almost $12.5

million and the hospital operators and principal purchasers of the

drugs for the hospital were owed $741,879.

In Chapter 11 proceed ings, the district court conditionally

granted the debtor Liljeberg Enterprises, Inc.’s request to assume1 Neither party appeals from the district court’s judgment in Cause No.

95-2922, denying Liljeberg Enterprises, Inc.’s r e quest for injunctive relief.

The district court consolidated Cause No. 93-1794 early on with Cause Nos. 93-

4249, 94-3993, and 95-2922 for all purposes, but, for ease o f reference, we

follow the district court and the parties in referring to the various parts of

the district court’s judgment in the cas e by the original causes of action

numbers.

2 We refer to these parties collectively or individually as “Lifemark”

except where further distinction is relevant.

3 the Clinical Pharmacy Management Agreement as an executory contract

pursuant to 11 U.S.C. § 365. 1

We reverse the district court’s judgmen t setting aside the

judicial for eclosure of the hospital and declining to award the

deficiency due on the mortgage debt, we rev erse the district

court’s order allowing the debtor in the Chapter 11 proceedings to

assume the pharmacy agreement, and finally we affirm in part and

reverse in part the various awards made under t he pharmacy

agreement.

I.

First, the dramatis personae. The four consolidated actions

involve Lifemark Hospitals of Louisiana, Inc., Lifemark Hospitals,

Inc., American Medical International, and Tenet Healthcare

Corporation on one side, 2 and Liljeberg Enterprises, Inc.

(“Liljeberg Enterprises”) and St. Jude Hospi tal of Kenner, La.,

L.L.C. (“St. Jude”) (collectively the “Liljebergs”) on the other.

Liljeberg Enterprises is a corporation whose sole shareholders

are John Liljeberg and his brother Robert Liljeberg, both licensed

pharmacists. The Liljebergs, through Liljeberg Enterprises, formed3 The 1122 certificate allowed certain capital costs to be passed through

to the government.

4 a series of corpora tions and a partnership to own or operate a

medical complex consisting of a hospital, a hospital pharmacy, and

a medical office building. St. Jude, a wholly-owned subsidiary of

Liljeberg Enterprises, owned the St. Jude Hospital (“hospital ”),

which is now known as Kenner Regional Medical Center. St. Jude

Medical Office Building, Ltd. Partnership (“St. Jude Limited

Partnership”), of which St. Jude was the general partner, owned the

adjacent medical office building. Funding for that building came

from Travelers Insurance Company, a loan of $25 million on October

10, 1985, secured by a mortgage on the medical office building and

an assignment to Travelers of rents to be paid on leased spaces in

the building.

Lifemark Hospitals, Inc . was a national hospital management

company that provided financing to St. Jude to build the hospital.

Lifemark Hospitals of Louisiana, Inc., a wholly owned subsidiary of

Lifemark Hospitals, Inc., entered into an agreement with St. Jude

to lease and oper ate the hospital. American Medical acquired

Lifemark Hospitals, Inc. in 1984, and Tenet became the successor to

American Medical in 1995.

II.

On August 26, 1981, the Liljebergs obtained a “certificate of

need” under Section 1122 of the Social Security A ct to build and

operate a 300-bed acute care facility in the New Orleans area. 34 S ee, e.g.

, Liljeberg v. Health Servs. Acquisition Corp.

, 486 U.S. 847

(1988).

5 This Section 1122 certificate was the only one available in the New

Orleans area and the last one to be granted in Louisiana. Lacking

the money to build a hospital, the Liljebergs immediately solicited

participation by many companies, including Health Services

Acquisition Corporation. The Liljebergs’ negotiations with Health

Services extended over several months before disintegrating into

heated litigation. 4 The Liljebergs began their discussions with

L ifemark in the latter part of 1981, under the shadow of the

approaching deadline under the Section 1122 certificate of need.

In their negotiations with Lifemark, John Liljeberg was

assisted by a team of two attorneys, one of whom was a CPA, an

economist, and two pharmacy consultants. John Liljeberg insisted

from the outset that, as part of any deal, the Liljebergs had to be

given a contract to provide pharmaceutical se rvices to the

hospital. On December 21, 1982, the parties signed a letter of

intent setting forth the principal terms of their agreement.

The final documents were executed in early 1983, including:

(1) a loa n agreement, wherein Lifemark Hospitals, Inc. agreed to

provide financing of over $44 million to St. Jude for construction

of the hospital; (2) a promissory note signed by St. Jude and made

payable to Lifemark Hospitals, Inc.; (3) a collateral mortgage, a

collateral mortgage note, and a pledge of the collateral mortgage

note, all signed by S t. Jude to secure the note to Lifemark5 Under both its original note and a later renewal note, St. Jude had the

right to offset its right to receive basic rent against St. Jude’s note

obligations. St. Jude exercised this option at all relevant times through

October 1, 1994.

6 Hospitals, Inc.; (4) a lease agreement wherein Lifemark Hospitals

of Louisiana, Inc. agreed to lease and operate the hospital from

St. Jude; a nd (5) the Clinical Pharmacy Management Agreement

(“pharmacy agreement”), signed by Liljeberg Enterprises and

Lifemark Hospitals of Louisiana, Inc., wherein Liljeberg

Enterprises agreed to provide pharmaceutical services to the

hospital. Additionally, the Liljebergs received a cash payment of

$2.5 million as called for by the letter of intent.

These agreem ents were intertwined in at least two ways: (1)

St. Jude’s note payments and Lifemark’s lease payments were

offsetting transactions so that the ir monthly payment was only a

bookkee ping entry; 5 and (2) the pharmacy agreement contained a

cross-default provision.

A dispute arose between Lifemark and St. Jude over the

financing a nd project management involved in the construction of

the hospital. That dispute was settled by written agreement in

1991 after arbitration. As part of the settlement, St. Jude

executed a renewal note, renewing and extending the original note.

Like the original note, the renewal note was secured by the

original collateral mortgage, collateral mortgage note, and pledge

of collateral mortgage note. To further secure the renewal note,

St. Jude executed a “Collateral Assignment of Basic Rent”6 Travelers Ins. Co. v. St. Jude Hosp.

, No. 92-9579, 21 F.3d 1107, at 2

(5th Cir. Apr. 20, 1994) (unpublished per curiam).

7 (“collateral assignment of rents”), which was recorded, providing

Lifemark Hospitals, Inc. a secured interest in rents in the event

of a future default by St. Jude.

The hospital, hospital pharmacy, and medical office building

became operational in 1985. By March of 1990, St. Jude Limited

Partnership had defaulted on its Travelers loan and, in June 1990,

Travelers sued St. Jude Limited Partnership and other defendants.

The suit, seeking seizure and sale by judicial process of the

medical office building, was successful, and the building was sold

at public auction on October 18, 1991 to Travelers, the sole

bidder.

More protracted litigation ensued, in the course of which a

panel of this court commented that the conduct of the Liljebergs

constituted “as egregi ous and unconscionable of bad faith

contractual dealings as the members of this panel can recall having

encountered.” 6 Travelers obtained an amended judgment in December

1992 awarding Travelers both unpaid rents and damages from St. Jude

Limited Part nership based on, i nter alia

, a jury verdict finding

waste committed by the Liljebergs with respect to the collateral in

the medical office building securing the repayment of Travelers’s

loan to St. Jude Limited Partnership for the construction of the

building. When efforts to collect the amended judgment against the

partnership failed, Travelers filed a separate action against St.7 T ravelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc.

, 37 F.3d 193

(5th Cir. 1994).

8 Lifemark’s collateral mortgage is dated March 15, 1983. In order to

preserve the rank of the collateral mortgage, it had to be reinscribed by March

15, 1993. S ee L A

. C IVIL C ODE art. 3328; accord id. art. 3369 (repealed by 1992 La.

Ac ts 1132). Nearly five months later Travelers filed its judgment lien. One

effect of Lifemark’s failure to reinscribe was that it was not able to foreclose

on the hospital following the filing of the Travelers lien without paying the

Travelers debt. Lifemark, in fact, ultimately sued its former attorneys for

legal malpractice on the basis of this failure to reinscribe.

8 Jude, the general partner of St. Jude Limited Partnership, in which

Travelers obtained a summary judgment on July 30, 1993, which this

Court affirmed. 7

On August 12, 1993, Travelers secured a lien on the hospital

by filing its $7.8 million judgment against St. Jude. The

Travelers lien primed Lifemark’s collateral mortgage because

Lifemark had not at that time reins cribed its lien. 8 Lifemark

reinscribed its collateral mortgage on June 29, 1994.

Within the same time frame, on January 27, 1993, within one

month after Travelers obtained its $7.8 million judgment, Liljeberg

Enterprises filed for bankruptcy protection. In the course of

these bankruptcy proceedings, Liljeberg Enterprises as the debtor

in possession, sought the federal district court’s perm ission to

assume, that is, continue to operate under, the pharmacy agreement,

pursuant to 11 U.S.C. §§ 365 and 1107. Shortly thereafter, on

August 11, 1993, within one month after Travelers sought to collect

its judgment against St. Jude, St. Jude filed for Chapter 11

bankruptcy protection. The bankruptcy court dismissed that action

one year later, finding that St. Jude had filed in bad faith.9

On August 30, 1994, Travelers began the process of foreclosing

on the hospital. Once again, St. Jude asked the district court to

vacate Travelers’s writ of execution and to find Travelers’s lien

inferior to Lifemark’s lien. At St. Jude’s request, Lifemark filed

a memorandum setting forth the facts concerning the ranking of the

liens. The court denied St. Jude’s motions and allowed the

foreclosure sale to proceed.

Prior to the sale, Lifemark Hospitals, Inc. filed a motion in

the federal district court before Judge Henry A. Mentz, Jr. seeking

permiss ion to bid credits against the value of its collateral

mortgage instead of cash at the judicial sale, subject to any

obligation to pay the amount of cash necessary to satisfy the

superior judicial mortg age of Travelers. The court granted

Lifemark Hospitals, Inc.’s motion.

The United States Marshal’s seizure and judicial sale of the

hospital occurred on October 28, 1994. Lifemark Hospitals of

Louisiana, Inc. was the sole bidder and purchased the hospital for

$26 million, or two-thirds of the $37.5 million appraised value as

the minimum price prescribed by Louisiana statute. The purchase

price was distributed as follows: (1) $7,786,083.33 went to

Travelers to satisfy its lien; (2) $18,165,483.74 went to Lifemark

Hospitals, Inc. to reduce the deficiency owed on St. Jude’s note to

Lifemark Hospitals, Inc.; and (3) the balance was applied to costs

of the sale. The district court subsequently confirmed the sale.

St. Jude appealed the orders of the district court, and this court9 S ee Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc.

, Nos. 94-

30636, 94-30639 & 94-30665, 56 F.3d 1386 (5th Cir. May 24, 1995) (unpublished per

curiam).

10 affirmed, dismissing as moot St. Jude’s challenge to the confirmed

judicial sale. 9

As a result, Lifemark became the owner of the hospital, and

Lifemark’s lease with St. Jude was extinguished as a matter of law

under the doctrine of confusion. At the same time, Lifemark

accelerated the debt owed by St. Jude under the renewal note, and

Lifemark sought to terminate the pharmacy agreement based upon the

cross-default provision in that agreement.

III.

Ultimately four lawsuits were consolidated and tried to the

bench in the United States District Court for the Eastern District

of Louisiana in June and July 1997. The district court entered

findings of fact and conclusions of law and a partial judgment on

April 26, 2000, later amending the ju dgment by adding a

certification under Federal Rule of Civil Procedure 54(b) on August

1, 2000, three years after the case was tried. The amended

judgment included a Rule 54(b) certification for immediate appeal

of “all c laims other than Liljeberg Enterprises, Inc.’s claim in

Cause No. 93-4249 for damages accruing from the commencement date

of the trial and continuing through the date of” the amended

judgment.11

I n the first lawsuit, Cause No. 94-3993, Lifemark sued St.

Jude to collect the unpaid balance of a promissory note evidencing

the debt incurred in building the hospital. St. Jude

counterclaimed for damages asserting a variety of lender liability

claims. The district court awarded no damages to Lifemark or St.

Jude. Rather it set out to undo the transaction and overturned the

1994 confirmed judicial sale of the hospital. This upset was made

contingent upon either St. Jude or its parent company Liljeberg

Enterprises reimbursing Lifemark the amount that Lifemark had paid

to Travelers, the holder of the superior lien and judicial

mortgage. The district court also reinstated all of the related

commercial instruments as if the judicial sale had never taken

place and denied Lifemark’s deficiency claim.

In the second suit, Cause No. 93-1794, Liljeberg Enterprises,

as the Chapter 11 debtor in possession, sought permission from the

bankruptcy court to assume the pharmacy agreement between Lifemark

and Liljeberg Enterprises as an executory contract pursuant to

Bankruptcy Code section 365. On October 19, 1993, the district

court withdrew the reference to bankruptcy court of LEI’s motion to

assume. The district court, over Lifemark’s objection, granted the

motion to assume the pharmacy contract.

The third suit, Cause No. 93-4249, was filed in Louisiana

state court but removed to the federal district court. Here

Lilje berg Enterprises claims that Lifemark, acting in bad faith,

breached and wrongfully “circumvented” the pharmacy agreement.10 Lifemark filed many of its breach of contract claims as part of its

counterclaim in the bankruptcy cause of action, Cause No. 93-1794. The district

court consolidated Cause No. 93-1794 with Cause No. 93-4249 early in the course

of this litigation, and, as a result, l ike the district court’s opinion and

judgment, this court’s opinion treats Lifemark’s claims related to LEI’s breach

of the pharmacy agreement as though they were filed in Cause No. 93-4249.

11 Legend drugs are prescription drugs that bear a legend on the label

warning that the drug may not be dispensed without a prescription from a dulyauthorized practitioner. S ee L A

. R EV

. S TAT

. § 37:1164(45) (“‘Prescription drug’

or ‘legend drug’ means a drug that is required by any applicable federal or state

law or regulation to be dispensed or delivered pursuant only to a prescription

drug order, or is restricted to use by practitioners only.”); id. § 40:1237(3)

(“‘Legend dru g’ means any drug or drug product bearing on the label of the

manufacturer or distributor, as required by the Federal Food and Drug

Administration, the statement ‘Caution: Federal law prohibits dispensing without

prescription.’”); L A

. A DMIN

. C ODE tit. 46, pt. LIII, § 3501(A) (“Legend Drugs. A

legend drug is a medication which must only be dispensed by a pharmacist on the

order of a licensed practitioner and shall bear the following notation on the

label of a commercia l container: ‘caution: federal law prohibits dispensing

without a prescription’ (Ref. R.S. 40:1237, et seq. [1982] and U.S.C. 21:353(b)

[1987]).”)

12 Lifemark denied the allegations and counterclaimed for overcharges

and breaches of the pharmacy agreement. 10 The district court found

that Lifemark owed Liljeberg Enterprises $12,432,905.92 for breach

of payment due under the pharmacy agreement and that Liljeberg

Enterprises owed Lifemark $741,879 in overcharges.

Finally, in the fourth suit, Cause No. 95-2922, Liljeberg

Enterprises sought an injunction to prohibit Lifemark from

unlawfully dispensing legend drugs at the hospital. 11 The district

court denied Liljeberg Enterprises’s request.

IV.

Lifemark here att acks judgments in Cause Nos. 94-3993, 93-

1794, and 93-4249 on many grounds. In Cause No. 94-3993, Lifemark

argues that the distr ict court erred by rescinding the judicial

sale of the hospital when this co urt of appeals decided in prior13

litigation that St. Jude’s challenge to the judicially confirmed

sale was moot; that the judgments are flawed by the following

erroneous rulings: that Lifemark Hospitals, Inc. had a duty to St.

Jude to reinscribe the collateral mortgage, and that Lifemark

Hospitals, Inc. had a duty to terminate the Travelers foreclosure;

that Lifemark Hospitals, Inc. had a duty to prevent Lifemark

Hospitals of Louisiana, Inc. from purchasing the hospital a t the

foreclosure sale; that Lifemark acted in bad faith or colluded to

chill the bidding at the foreclosure sale which proximately caused

St. Jude’s loss; and that Lifemark Hospitals of Louisiana, Inc. did

not properly purchase the hospital at two-thirds of its appraised

value. Lifemark also argues that the district court erred in

c oncluding that Lifemark is not entitled to recover on its

deficiency claim under the renewal promissory note.

In Cause No. 93-1794, Lifemark argues that the district court

erred in allowing Liljeberg Enterprises to assume the pharm acy

agreement on several grounds. First, it erred in its ruling that

the pharmacy agreement did not terminate by its own terms prior to

the district court’s order allowing assumption. Second, by failing

to properly interpret section s 5.1(e) and 5.1(b) of the pharmacy

agreeme nt and section 11.1 of the lease and the fourth and fifth

covenants of the mortgage.

In Cause No. 93-4249, Lifemark argues that the district court

erred in its interpretation of sections 2.4, 2.6, 4.1, and Exhibit

B of the pharmacy agreement and in denying Lifemark’s motion to14

reopen the evidence. Further, Lifemark argues that the district

court erred: in awarding damages based upon a procedurally flawed

audit; in awarding duplicative damages; in allowing Liljeb e rg

Enterprises to recover costs greater than those allowed by the

hospital’s prime vendor contract under section 2.4 of the pharmacy

agreement; in all owing Liljeberg Enterprises to recover based on

unexplained bills; in failing to award damages to Lifemark for

Liljeberg Enterprises’s overbilling; and in its interpretation of

the parties’ stipulation as to actual acquisition costs payable

under an earlier state court judgment.

Finally, Lifemark argues that the district cou rt erred in

awarding any relief against Tenet, a non-party.

On its cross-appeal, in Cause No. 94-39 93, Liljeberg

Enterprises argues that the district court erred in requiring St.

Jude and Liljeberg Enterprises to reimburse Lifemar k the

$7,834,516.26 it paid to Travelers for the allegedly collus ive

purchase of the hospital. The Liljebergs also contend on their

cross-appeal in Cause Nos. 94-3993, 93-1794, and 93-4249 that

Liljeberg Enterprises and St. Jude are entitled to attorneys’ fees

by the parties’ lease agreement and under Louisiana Civil Code

articles 1997 and 1958.

V. Cause No. 94-3993

T he district court in Cause No. 94-3993 overturned the

confirmed 1994 judicial sale of the hospital contingent upon either

St. Jude or Liljeberg Enterprises reimbursing Lifemark the12 Kona Tech. Corp. v. S. Pac. Transp. Co. , 225 F.3d 595, 601 (5th Cir.

2000).

15 approximately $7.8 million that Lifemark paid to Travelers to

purchase the hospital at foreclosure. The district court also

reinstated the renewal promissory note, collateral mortgage note,

pledge of collateral mortgage note, collateral mortgage, hospital

lease, and collateral assignment of rents which existed before the

judicial sale and held that all rental payments that were due by

Lifemark to St. Jude under the lease shall be deemed paid by St.

J ude to Lifemark and the renewal promissory note, collateral

mortgage note, pledge of collateral mortgage note, and collateral

mortgage are deemed current and not in default as of the date of

judgment. Finally, the district court denied Lifemark’s claim for

a deficiency pursuant to the renewal promissory note.

We review de novo the district court’s legal conclusions, but

review i ts findings of fact for clear error. 1 2 We have explained

that “‘a finding is clearly e rroneous when although there is

evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm co nviction that a mistake has

been committed,’” and that, “despite an appellate cou rt’s

conviction that it would have weighed the evidence differently had

it been sitting as the trier of fact, it may not reverse a district

court’s findings when they are based on a plausible account of the13 NAACP v. Fordice

, 252 F.3d 361, 365 (5th Cir. 2001) (quoting Anderson

v. City of Bessemer , 470 U.S. 564, 573 (1985)).

14 Id. (quoting Anderson , 470 U.S. at 573).

15 Payne v. United States , 289 F.3d 377, 381 (5th Cir. 2002).

16 e vidence considered against the entirety of the record.” 1 3

Accordingly, “when ‘two permissible views of the evidence exist,

the fact finder’s choice b etween them cannot be clearly

erroneous.’” 14 Further, “as to mixed questions of law and fact, we

review the district court’s fact findings for clear error, and its

legal conclusions and application of law to fact de novo .” 15

A.

The district court premised its decision setting asid e the

judicial sale of the hospital on a finding that Lifemark breached

fiduciary duties and an obligation of good faith owed to St. Jude.

It f ound these obligations in the Louisiana law of pledge. The

district court found that Lifemark Hospitals, Inc. became the

pledgee of St. Jude by holding the collateral mortgage note and the

right to basic rent under the collateral assignment of rents. As

pledgee, Lifemark owed fiduciary duties to St. Jude, its pledgor,

to protect that collateral, the collateral mortgage note an d the

right to basic rent under the collateral assignment of rents.

The found breach came when Lifemark failed to timely

reinscribe the collateral mortgage and “allowed” Travelers’

judgment mortgage to prime the collateral mortgage. The district

court also found a breach of a duty to preserve the lease covering16 See Verdine v. Ensco Offshore Co. , 255 F.3d 246, 252 (5th Cir. 2001);

Hulin v. Fibreboard Corp. , 178 F.3d 316, 328 (5th Cir. 1999).

17 the assigned rents as pledgee of the right to basic rent under the

collateral assignment of rents. This breach came, it found, when

Lifemark Hospitals, Inc. allowed Lifemark Hospitals of Louisiana,

I nc. to acquire the hospital. That acquisition extinguished the

lease under the doctrine of confusion pursuant to Louisiana Civil

Code article 1903 as well as the rental stream assigned to Lifemark

Hospitals, Inc.

As the district court explained it, w hen St. Jude became

li able to Travelers for over $7.8 million, specifically

$7,834, 5 16.26, and the hospital became subject to Travelers’s

approximately $7.8 million lien, Lifemark Hospitals, Inc. was

obligated to buy out the Travelers lien, to add the Travelers debt

to the debt owed by St. Jude to Lifemark Hospitals, Inc.

Relatedly, it found an obligation to refrain from having Lifemark

Hospitals of Louisiana, Inc. purchase the hospital at the

foreclosure sale. All these were found to be duties, all of which

Lifemark breached.

In this diversity case, we are controlled by the substantive

law o f Louisiana. We are to determine and apply its law as we

believe the S upreme Court of Louisiana would, looking to the

decisions of intermediate Louisiana appellate courts for guidance

where the Supreme Court of Louisiana has not spoken clearly to the

issue. 1617 T rans-Global Alloy Ltd. v. First Nat’l Ban k of Jefferson Parish , 583

So.2d 443, 453 (La. 1991) (quoting In re Pan American Life Ins. Co. , 88 So.2d

410, 415 (La. App. 2 Cir. 1956)).

18 L A

. C IV

. C ODE art. 3133.

19 D iamond Servs. C orp. v. Benoit , 780 So.2d 367, 371 (La. 2001)

(citations and footnote omitted).

18 We conclude that the foundational principles of the entire set

of the district court’s rulings are deeply flawed. Such duties are

not to be found in Louisiana law.

There is no question but that, under Louisiana law, “‘a trust

relations hip between the pledgor and pledgee’” carries with it

“‘attendant duties to protect the debt or the obligation and the

collateral.’” 17 But holding the collateral mortgage note and the

right to basic rent under the collateral assignment of rents did

not create a pledgor-pledgee relationship giving rise to the duties

discovered by the district court.

To understand why t his is so it is helpful to review the

Louisiana law of pledge and collateral mortgages. “The pledge is

a contract by which one debtor gives something to his creditor as

a security for his debt.” 18 The Supreme Court of Louisiana has very

recently repeated the Louisiana law of pledge:

Pledge is an accessory contract by which one debtor

gives something to a creditor as security for the debt.

Invariably, the thing given as security for the debt is

a movable, in which case the contract is more accurately

called pawn. A person may give a pledge not only for his

own debt, but also for that of another. The pledge

secures only that debt or debts contemplated in the

contract between the pledgor and pledgee. 1920 L A

. R EV

. S TAT . § 9:5550(1).

21 C harrier v. Sec. Nat’l of Or. (In re Charrier)

, 167 F.3d 2 29, 232-33

(5th Cir. 1999) (footnotes omitted). We have also discussed the usual purpose

to which collateral mortgages are put: “The collateral mortgage is commonly used

with financi ng in which the maker draws the loan proceeds in stages. The

collateral note and mortgage are made for the full amount of the line of credit

extended by the lender. This is then pledged as security for a debt, usually

represented by a separate hand note. This seemingly fictitious transaction is

a Louisiana credit device that lenders use to obtain a lien on property effective

19 A “collateral mortgage” is statutorily defined as “a mortgage

that is given to secure a written obligation, such as a collateral

mortgage note, negotiable or non negotiable instrument, or other

written evid ence of debt, that is issued, pledged, or otherwise

used as security for another obligation.” 20 We recently summarized

the basic operati on of a typical collateral mortgage transaction

under Louisiana law:

In a typical Louisiana collateral mortgage transaction,

the borrower contemporaneously executes a promissory note

(know n as a collateral mortgage note) and an act of

mortgage (known as a collateral mortgage). In this

latter instrument, the mortgagor acknowledges his

indebtedness and states his intent to pledge the

collateral mortgage note, which is s ecured by the

collateral mortgage, as security for the advancement of

funds. The collateral mortgage note is customly made

payable on demand, to “Bearer” or “Myself” or “Any Future

Holder,” and is “paraphed” for identification with the

mortgage. This collateral mortgage package is then

delivered by the borrower in pledge to the lender to

secure an indebtedness which is usually represented by a

separate “hand note.”

The pledge of a collateral mortgage no te and

collateral mortgage to secure a debt is a contract. The

pledge secures only the debt or debts contemplated in the

act of pledge between the pledgor and the pledgee. A

collateral mortgage package may be pledged to secure

particular debts, either previously existing or

contracted contemporaneously with the pledge, or future

l oans by the pledgee to the pledgor—or both—up to the

limits of the pledge. 21on the date the mortgage is executed for advanc es not yet made, but which the

lender may make in the future.” F ed. Sav. & Loan Ins. Corp. v. Murray

, 853 F.2d

1251, 1255 n.1 (5th Cir. 1988).

22 Diamond Servs. , 780 So.2d at 370 (footnote omitted).

23 Id. at 371.

20 The Supreme Court of Louisiana has made clear that “[t]he

collateral mortgage, though now recognized by statute, is a form of

conventional mortgage that was developed by Louisiana’s practicing

lawyers and has long been recognized by Louisiana courts.” 2 2 It

“arose out of the need for a special form of mortgage to secure

revolving lines o f credit and multiple present and future crosscollateralized debts for which there was no provision in the Civil

Code.” 23

More specifically, the Supreme Court of Louisiana explained:

“A mortgage is an accessory right which is granted

to the creditor over the property of another as security

for the debt. La. Civ. Code arts. 3278, 3284. Mortgages

are of three types: conventional, legal and judicial. La.

C iv. Code art. 3286. Within the area of conventional

mortgages, three different forms of mortgages are

recognized by the Louisiana statutes and jurisprudence:

an “ordinary mortgage” (La. Civ. Code arts. 3278, 3290);

a mortgage to secure future advances (La. Civ. Code arts.

3292, 3293); and a collateral mortgage. S ee Thrift Funds

Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972).

Unlike the other two forms of conventional mortgages, a

collateral mortgage is not a ‘pure’ mortgage; rather, it

is the result of judicial recognition that one can pledge

a note secured by a mortgage and use this pledge to

secure yet another debt.

“A collateral mortgage indirectly secures a debt via

a pledge. A collateral mortgage consists of at least

three documents, and takes several steps to complete.

First, there is a promissory note, usually called a

c ollateral mortgage note or a ‘ne varietur’ note. The

collateral mortgage note is secured by a mortgage, the24 I d. at 371 (quoting First Guar. Bank v. Alford, 366 So.2d 12 99, 1302

(La. 1978)).

25 Id. at 372 (footnote omitted).

26 Tex. Bank of Beaumont v. Bozorg, 457 So.2d 667, 671 n.4 (La. 1984).

21 so-called collateral mortgage. The mortgage provides the

creditor with security in the enforcement of the

collateral mortgage note.

“Up to this point, a collateral mortgage appears to

be identical to both a mortgage to secure future advances

and an ordinary mortgage. But a distinction arises in

the collateral mortgage sit uation because money is not

directly a dvanced on the note that is paraphed for

identification with the act of mortgage. Rather, the

collateral mortgage note and the mortgage which secures

it are pledged to secure a debt.” 24

As such, “[b]ecause the mortgagor, after executing the collateral

mortgage and the collateral mortgage note, then pledges the

collateral mortgage note as securi ty for a debt, usually

represented by a separate hand note, the collateral mortgage

package combines the security devices of pledge and mortgage.” 25

Synthesizing the law of pledge and on collateral mortgages,

the Supreme Court of Louisiana has observed that a “[p]ledge is an

accesso ry contract which secures the performance of an existing

principal obligation,” and “[t]he principal obligation in the

collat eral mortgage scheme is the actual indebtedness, usually

represented by a hand note, and the collateral mortgage note is

pledged to secure payment of the principal obligation.” 2 6 The

district court and Liljeberg Enterprises make much of the fact that

the collateral mortgage “package” involves a “pledge,” but, under

the facts of this case, this is word play.27 S ee, e.g.

, Diamond Servs.

, 780 So.2d at 372 (“The dispute in this case

centers around the obligation that arises from the making of the collateral

mortgage note when th at note is pledged to secure the debt of a third party

represented by a hand note executed by that third party.”).

28 S ee, e.g.

, L A

. R EV

. S TAT

. § 10:9-207(a) (“Duty of care when secured party

in possession. Except as otherwise provided in subsection (d), a secured party

shall use reasonable care in the custody and preservation of collateral in the

secured party’s possession. In the case of chattel paper or an instrument,

reasonable care includes taking necessary steps to preserve rights against prior

parties unless otherw ise agreed.”); L A

. C IV

. C ODE art. 3167 (“The creditor is

answerable agreeably to the rules which have been established under the title:

Of Conventional Obligations, for the loss or decay of the pledge which may happen

through his fault.”); accord L A

. R EV

. S TAT

. § 10:9-207(1) (“A secured party must

use reasonable care in the custody and preservation of collateral in his

possession. In the case of an instrument or chattel paper reasonable care

includes taking necessary steps to preserve rights against prior parties unless

otherwise agreed.”) (superseded by 2001 La. Acts 128); cf. Trans-Global

, 583

So.2d at 453 (holding that, in a case not involving a collateral mortgage, the

duty of care imposed on a creditor, as the pledgee of a debtor’s letter of credit

from a third party, was that of prudent administrator s uch that the creditor

could be held liable for the loss or decay of the pledge occurring through its

fault).

22 A collateral mortgage often involves a hand note that is a

third party’s note made payable to the mortgagor, which note is

pledged by the mortgagor to the mortgagee. 27 In such an instance,

a pledgor-pledgee relationship with attendant duties—including a

statutory duty of reasonable care and fiduciary duties—to protect

the rights of the mortgagor in the third party’s note against other

creditors of the third party may well arise under statute by the

virtue of the nature of the pledgor-pledgee relationship. 28

Here, however, St. Jude executed a collateral mortgage on the

hospital site and pledged a collateral mortgage note to L ifemark

Hospitals, Inc. to secure the collateral mortgage, which was itself

created to secure the promissory note evidencing Lifemark

H ospitals, Inc.’s loan to St. Jude for construction of the29 Liljeberg Enterprises argues for first time in its reply brief that

Lifemark did not raise in the district court its argument distinguishing between

collateral mortgages involving third party notes and those involving hand notes

on which the collateral mortgagor is the obligor. Ordinarily, we do not consider

arguments raised for the first time in a reply brief. See Price v. Roark , 256

F. 3d 364, 368 n.2 (5th Cir. 2001). However, St. Jude’s argument here seeks

simply to invoke a rule which we at times invoke sua sponte : that arguments not

raised in the district court ca nnot be asserted for the first time on appeal.

See Stokes v. Emerson Elec. Co. , 217 F.3d 353, 358 n.19 (5th Cir. 2000); Brown

v. Ames

, 201 F.3d 654, 663 (5th Cir. ), cert. denied , 531 U.S. 925 (2000).

However, an argument is not waived on appeal if the argument on the issue before

the district court was sufficient to permit the district court to rule on it.

Brown

, 201 F.3d at 663; Rogers v. Hartford Life & Accident Ins. Co. , 167 F.3d

933, 943 n.8 (5th Cir. 1999); N.Y. Life Ins. Co. v. Brown

, 84 F.3d 137, 141 n.4

(5th Cir. 1996). That is the case here, based on our review of the record. On

appeal, Lifemark h as certainly refined its argument to distinguish the duties

owed by a collateral mortgagee/p ledgee in third-party note situations as

developed in the case law cited by St. Jude from Lifemark’s situation, but

Lifemark did sufficiently put before the district court its argument that no duty

to rein scribe the collateral mortgage or to prevent the loss of the hospital

flowed from its pledgor-pledgee relationship with St. Jude. S ee R. 9076, 9151-

57. This was sufficient to permit the district court to rule on the essential

argument Lifemark advances on appeal.

23 hospital. There was no third-party obligation involved. 2 9 In such

a case, where the mortgagor has “pledged” to the mortgagee the

mortgagor’s own hand note on which the mortgagor is directly

obligated to the mortgagee, the mortgagee has a duty to keep the

note so that it may be returned to the mortgagor upon payment of30 C f. Max Nathan, Jr. & Anthony P. Dunbar, The Collateral Mortgage: Logic

and Experience

, 49 L A

. L. R EV

. 39, 49 (1988) (“Since a collateral mortgage may be

used to secure a specific debt, a debtor who wishes to limit the mortgage to that

debt can lawfully do so and the pledge agreement is clearly the proper document

in which to manifest such an intent. The risk, of course, is that the ne

varietur note, which is negotiable, may fall into the hands of bona fide third

parties who are unaware of the pledge agreement and are not bound by it. That

risk is probably the major drawback to use of the collateral mortgage. T he

problem is mitigated by the fact that a pledgee, who accepts a fiduciary duty as

such, surely would be liable to a borrower injured in such a situation. The risk

c an be further minimized by use of a third-party custodian to hol d the ne

varietur note, or by use of a safety deposit box with appropriate restrictions.”

(emphasis added; footnotes omitted)); cf. also People’s Bank v. Cookston

, 142 So.

285, 286 (La. App. 2 Cir. 1932) (holding that the plaintiff, as pledgee of the

chattel mortgage note, was “under obligation to keep the pledged property intact,

in order that it might be returned when the principal obligation is paid, when

it does not proceed on the pledged property”).

31 Ralph Slovenko, O f Pledge

, 33 T UL

. L. R EV

. 59, 121 (1958) (cited in

Trans-Global , 583 So.2d at 453).

24 the underlying debt to the mortgagee. 30 It is true that the Supreme

Court of Louisiana has cited Professor Slovenko’s observation that:

... [I]n the case of promissory notes, bills of exchange,

and other evidences of indebtedness pledged as security,

a duty exists on the part of the pledgee to preserve the

rights of the pledgor against the obligors in the

deposited documents. The pledgee is held responsible if

he neglects to have a promissory note, the subject of the

pledge, protested for n on-payment, and the endorser is

discharged in consequence; or, if he neglects to have a

mortgage which is pledged to him reinscribed or

reregistered in prop er time, and it loses its rank and

effect. 31

It is also the case that Professor Slovenko’s discussion assumes

that a third-party obligation is involved with the pledge , where

here it is not. To the contrary, the obligor of the underlying

document and the pledgor (and the collateral mortgagor) were one

and the same—St. Jude.

Lifemark Hospitals, Inc. loaned money to St. Jude to build a

hospital, a loan evidenced by a loan agreement and a promissory32 Under a later settlement in 1991, St. Jude executed a renewal note,

r enewing and extending the original note, and, like the original note, the

renewal note was secured by the original collateral mortgage, collateral mortgage

note, and pledge of the collateral mortgage note. Along with the execution of

the renewal note, St. Jude provided Lifemark Hospitals, Inc. with additional

security in the form of a collateral assignment of rents, which assignment was

recorded.

25 note, or hand note, in turn c ollateralized by the pledge of a

collateral mortgage note, itself secured by a collateral mortgage

on the hospital site. 32 The extraordinary duty the district court

imposed upon Lifemark, who loaned the money to build the hospital

and held the mortgage on it to secure its payment, is inexplicable.

Whatever duty Lifemark may have owed as the pledgee of the

collateral mortgage note, they do not include a requirement that

Lifemark reinscribe the mortgage exec uted in Lifemark’s favor to

secure a debt owed by St. Jude to Lifemark, in order that the

mortgage may retain priority for Lifemark’s benefit as pledgee and

mortgagee. As Lifemark aptly points out, ordinarily a debtor such

as St. Jude is happy to have its creditor fail to record its lien.

We reject the assertion that Lifemark as the mortgagee here owed a

duty to its mortgagor to reinscribe the mortgage, as illustrated in

part, indeed, by the very difficulty of describing exactly how not

protecting a mortgage’s first position, in and of itself, could

possibly harm the mortgagor.

Nor can this theory explain how it can lie beside the

undisputed right of Lifemark Hospitals, Inc. to, “at any time,

without notice to anyone, release any part of the Property from the

effect of the Mortgage.” This right of release is explicitly33 Cf. Commercial Nat’l Bank in Shreveport v. Audubon Meadow P’ship

, 566

So.2d 1136, 1140-41 (La. App. 2 Cir. 1990) (holding that, in light of the

guaranty a greement’s permitting the lending bank to surrender any securities

without notice or consent from the guarantor, the bank’s alleged negligence in

allowing a letter of credit to lapse provided the guarantor with no basis for

recovery against the bank).

26 recited in the collateral mortgage itse lf. In addition, the

renewal note provides that St. Jude “agree[s] to any

... release of

any [of the security herefor].” The right of Lifemark to

unilaterally release any part of the property from the mortgage is

wholly at odds with the district court’s discovery of a “duty” to

reinscribe the collateral mortgage. It was Lifemark’s contractedfor right to retain the collateral mortgage’s priority against

other creditors, under both the renewal note and the collateral

mortgage itself. 33 The grant of a security interest to secure St.

Jude’s debt was to protect the lender, Lifemark Hospitals , Inc.,

not the borrower.

Nor did Lifemark as mortgagee have a duty to protect the

hospital owner from other creditors asserting their rights against

the hospital, as the district court held Lifemark did. It is selfevident that there is a vast difference between a statutory duty to

prevent loss or decay of a third party’s note evidencing a debt

owed to the collateral mortgagor/pledgor in order to preserve

against o ther third parties the collateral mortgagor’s rights in

the third party’s note pledged by it to the collateral mortgagee,

and a supposed fiduciary duty on the part of the collateral

mortgagee to protect the collateral mortgagor against a third34 S ee L A

. C IV

. C ODE art. 3152 (“It is essential to the contract of pledge

that the creditor be put in possession of the thing given to him in pledge, and

consequently that actual delivery of it be made to him, unless he has possession

of it already by some other right.”).

27 party’s exercise of its rights in an entirely different instrument

or judgment. This is a mere chimera, existing nowhere in Louisiana

law. It was apparently constructed out of whole cloth.

In sum, Lifemark had no duty to timely reinscribe the

collateral mortgage, and the district court erred as a matter of

law in concluding that Lifemark had a consequential duty to

“mitigate” any harm allegedly caused by Lifemark’s failure to

reinscribe by buying out the Travelers lien and adding the

Travelers debt to the debt owed by St. Jude to Lifemark.

As for any duties arising out of Lifemark’s holding the right

to basic rent under the collateral assignment of rents, Lifemark

argues in part that the statutory duty of reasonable care under

Louisiana Civil Code article 3167 does not apply to an assignment

of rents because such an assignment is not a pledge where Lifemark

did not take possession of a corporeal movab le or evidence of a

credit, such as a note, as required by Louisiana Civil Code article

3152. 3 4 Lifemark argues that article 3167 imposes only custodial

duties on pledgees and that no such duties attend its collateral

assignment of rents from St. Jude.

This argument, however, does not account for Louisiana Civil

Code article 3 153, which provides: “But this delivery is only

necessary with respect to corporeal things; as to incorporeal35 Id. art. 3153.

36 I d. art. 3155; see also L A

. R EV

. S TAT

. § 9:4401(A) (“Any obligation may

be secured by an assignment by a lessor or sublessor of leases or rents, or both

leases and rents, pertaining to immovable property. Such assignment may be

expressed as a conditional or collateral assignment, and may be effected in an

act of mortgage, by a separate written instrument of assignment, or by a separate

written instrument of pledge, and may be referred to, denominated, or described

as a pledge or an assignment, or both.”).

37 L A

. R EV

. S TAT

. §§ 9:4321, 9:4322 (repealed by 2001 La. Acts. 128).

Although these provisions were repealed in 2001, see 2001 La. Acts 128, this

repeal cannot be applied retroactively to the facts of this case because these

provisions were substantive laws and the legislature did not express its intent

to give the repeal of the substantive law retroactive effect, see Billingsley v.

Mitchell , 676 So.2d 208, 212-13 (La. App. 1 Cir.), writ denied , 681 So.2d 1265

(La. 1996).

28 rights, such as credits, which are given in pledge, the delivery is

merely fictitious and symbolical.” 35 An assignment of rents may be

a pledge, because “[o]ne may, in fine, pawn incorporeal movables,

such as credits and other claims of that nature.” 3 6 Indeed,

Louisiana statutes provide that “[c]laims, credits, obligations,

and incor poreal rights in general not evidenced by written

instrument or muniment of title, shall be subject to pledge, and

may be pledged in the same manner as ot her property” and that

“[t]he pledge shall be valid as to all persons without delivery of

the claim, credit, obligati on, or incorporeal right to the

pledgee.” 37

But again, that is beside the point, the duty attributed by

the district court to Lifemark as pledgee of the right to basic

rent under the collateral assignment of rents did not exist. The

recorded collat eral assignment of rents simply gave Lifemark a

secured right to rents upon default by St. Jude under the renewal29

note. The collateral assignment of rents specifically provides

that Lifemark Hospitals, Inc. “shall not be obligated to perform or

discharge nor does [Lifemark Hospitals, Inc.] hereby undertake to

perform or discharge any obligation, duty or liability under said

Lease.” As we observed, the renewal note itself gave Lifemark the

right to release any security, including the collateral assignment

of rents, under the renewal note. In the face of these contractual

provisions, holding the right to basi c rent under the collateral

assignment of rents imposed no duty upon Lifemark to preserve the

lease covering the assigned rents.

We are persuaded that the district court erred as a matter of

law in concluding that Lifemark breached any duties by failing to

timely reinscribe the collateral mortgage, buy out the Travelers

lien, add the Travelers debt to the d ebt owed by St. Jude to

Lifemark Hospitals, Inc., and refrain from having Lifemark

Hospitals of Louisiana, Inc. purchase the hospital at the

foreclosure sale. In sum, Lifemark did not owe the duties to St.

Jude upon which the district court premised its order reversing the

judicial sale of the hospital. The district court erred in

upsetting the confirmed judicial sale on these grounds.

B.

The district court pointed to its findings of Lifemark’s bad

faith, collusion, and self-dealing in forcing the judicial sale of

the hospital, chilling the bidding at the sale, and purchasing the

hospital as an alternative ground for its upset of the judicial38 S ee, e.g.

, First Nat’l Bank of Gonzales v. Morton

, 544 So.2d 5 (La.

App. 1 Cir.) (involving a prior successful foreclosure suit brought by a second

mortgagee), writ denied , 550 So.2d 654 (La. 1989); Keys v. Box , 476 So.2d 1141

(La. App. 3 Cir. 1985) (involving a foreclosure suit brought by a bank to protect

30 sale. The district court relied upon two unpublished district

court decisions setting aside a judicial sale. Both were in

admiralty and prior to sale confirmation.

That slender reed aside, the district court’s findings of a

“conspiracy” to wrest control of the ho spital and medical office

building from St. Jude and Liljeberg Enterprises border on the

absurd. We are left with the definite and firm conviction that a

mistake has been committed, that the findings are not supported by

the evidence and are clearly erroneous.

The district court’s “conspiracy theory” conclusion is based,

in part, on the view that Liljeberg Enterprises’s or St. Jude’s

losses were caused by Lifemark. Specifically, not reinscribing the

collateral mortgage and not buying out the Travelers lien and

adding the Travelers debt to the debt owed by St. Jude to Lifemark.

These findings turn on the remarkab le but largely implicit

conclusion, asserted directly by the Liljebergs’ coun sel at oral

argument, that, under Louisiana law, a se cond mortgagee, which

Travelers would have been had the collateral mortgage been timely

reinscribed, cannot initiate foreclosure proceedings. The district

court and Liljeberg Enterprises offer no statutory or case law

support for this proposition, for the simple reason that this is

not the law. 38its interest as a second mortgagee); Guinn v. Houston Fire & Cas. Ins. Co. , 32

So.2d 613 (La. App. 1 Cir. 1947) (involving a foreclosure suit instituted by a

second mortgagee).

39 S ee L A

. C IV

. C ODE art. 3333 (“A person may reinscribe a recorded document

creating a mortgage or evidencing a privilege by filing with a recorder a signed,

written notice of reinscription.”); accord id. art. 3369(E) (“The effect of the

registry ceases in all cases, even against the contracting parties, unless the

inscriptions have been renewed within the periods of time above provided in the

manner in which they were first made, or by filing a notice of reinscription of

mortgage or a written request for reins cription by the mortgagee o r any

i nterested person , together with a copy of the original act of mortgage.”

(emphasis added)) (repealed by 1992 La. Acts 1132).

31 The theory that Lifemark proximate ly caused any loss to

Liljeberg Enterprises or St. Jude from the Travelers foreclosure on

its judicial mortgage cannot accommodate the undisputed fact that,

under Louisiana law, St. Jude could have reinscribed the collateral

mortgage itself. 39 A subordinate position for the Travelers

judgment is now said to have been critical for St. Jude and its

loss the centerpiece of a conspiracy to take the hospital. Yet,

St. Jude could have checked the records and protected its own

interest. That it could have and did not do so is telling. It

rends a large hole in the conspiracy claim and leaves St. Jude’s

inaction unexplained. This, with the reality we have explained

that Lifemark Hospitals, Inc. had no duty to buy out the Travelers

lien, no duty to add the Travelers debt to the debt owed by St.

Jude to Lifemark Hospitals, Inc., and no duty to prevent the

purchase of the hospita l at the foreclosure sale by Lifemark

Hospitals of Louisiana, Inc.

Even if we were to somehow “explain” all of this by the theory

that this foreclosure was part of Lifemark’s plan from the40 Travelers Ins. Co. v. St. Jude Hosp. , No. 92-9579, 21 F.3d 1107, at 2

(5th Cir. Apr. 20, 1994) (unpublished per curiam). The panel further noted that

“[t]he Liljeberg conduct to which we refer is the antithesis of that mandated in

La. Civil Code Ann. art. 1983 (‘Contracts must be performed in good faith.’), and

has contributed to the legal effects described in La. Civil Code Ann. art. 1997

(‘An obligor in bad faith is liable for all damages, foreseeable or nor, that are

a direct consequence of his failure to perform.’).” Id. at 2 n.3.

32 beginning, the theory cannot be squared with one large undisputed

fact: Liljeberg Enterprises and St. Jude faced the Travelers lien

because of Liljeberg Enterprises’s and St. Jude’s own failed

litigation against Travelers, arising out of an independent dispute

with Travelers. Any suggestion that Lifemark somehow worked that

result is defied by the record. Indeed, a panel of this court

described the Liljebergs’ conduct involved that litigation as “as

egregious and unconscionable of bad faith contractual dealings as

the members of this panel can recall having encountered.” 4 0 The

cases b efore us only reinforce that panel’s observation. The

record is clear that any losses by St. Jude and Liljeberg

Enterprises were proximately caused by the Liljebergs, who

defaulted to Travelers and whose post-default conduct, in part, led

to the Travelers judgment and its resulting judicial mortgage and

lien on the hos pital. The foreclosure of this lien led to the

foreclosure of the hospital that the district court order would set

aside.

Indeed, despite Liljeberg Enterprises’s contention on appeal

that Lifemark’s efforts to “circumvent” the pharmacy agreement and

refusal to renew the medical office building lease caused St. Jude

and Liljeberg Enterprises to experience significant shortfalls41 Nor, for that matter, did the district court make findings supporting

two other premises of the Liljebergs’ arguments on appeal: that Lifemark

intentionally o r deliberately failed to reinscribe the collateral mortgage or

that Lifemark engaged in any fraud on the court or fraud with reg ard to the

judicial sale.

33 which foreclosed any possibility of paying the note on the medical

office building to Travelers, the district court made no findings

of fact tha t Lifemark’s conduct was the cause of the debt to

Travelers or St. Jude’s inability to pay that debt, which resulted

in the judicial mortgage Travelers filed encumbering the hospital

property. 41

With or without such findings, however, the idea that Lifemark

deliberately subordinated its mortgage interest to Travelers,

knowing it would result in a req uired payment, t o wit

,

approximately $7.8 million, to Travelers at any j udicial sale,

comes close to being nonsensical. It rests upon the assertion that

Louisiana law somehow obligated Lifemark to lend the money to bail

the Liljebergs out of their litigation fiasco with Travelers. That

is so because, as we will explain, Travelers would most certainly

have foreclosed its second mortgage. Although the district court

mad e no such explicit finding, Liljeberg Enterprises argues on

appeal that Lifemark deliberately failed to reinscribe its

collateral mortgage in order to facilit ate the Travelers

foreclosure and the judicial sale of the medical office b uilding

and the hospital to Lifemark Hospitals of Louisia na, Inc.,

whereafter Lifemark conspired to mani pulate the judicial sale,42 S ee Price

, 256 F.3d at 368 n.2 (court of appeals does not consider

issues raised for the first time in a reply brief); Peavy v. WFAA-TV, Inc.

, 221

F.3d 158, 179 (5th Cir. 2000) (refusing to consider issue that were not raised

or adequately briefed in the parties’ opening briefs), cert. denied

, 532 U.S.

1051 (2001); Atwood v. Union Carbide Corp.

, 847 F.2d 278, 280 (5th Cir.) (“As we

have already noted, issues not briefed, or set forth in th e list of issues

presented, are waived.”), amended on reh’g on other grounds

, 850 F.2d 1093 (5th

Cir. 1988).

34 colluded to minimize the price offered at the judicial sale, and

schemed to terminate the lease and St. Jude’s right to collect

rents from Lifemark.

In answer to the palpable flaws in their theories, the

Liljebergs would simply expand the conspiracy. They argue that

this court should consider documents from Lifemark’s legal

malpractice suit agai nst their former attorneys for their

attorneys’ failure to reinscribe the collateral mortgage and, more

specifically, in a footnote in their original brief, the Liljebergs

state for the first time that they “challenge the court’s denial of

their motion to supplement the record with documents from the trial

between Lifemark and [its former attorneys],” which “documents

clearly show that Defendants and their attorneys conspired to

defraud St. Jude/Liljeberg Enterprises out the hospital, the lease,

and the pharmacy.” It tells that this argument was not raised or

briefed as a separate issue until the Liljebergs’ final reply

brie f. It is therefore waived. 4 2 Moreover, the district court

ruled in an order dated April 25, 2000 that the Liljebergs’ motion

to supplement was rendered moot by the court’s order and final

judgment issuing its findings of fact and conclusions of law, which43 S ee Fields v. Pool Offshore, Inc.

, 182 F.3d 353, 360 n.7 (5th Cir.

1999) (standard of review for denial of motion to supplement the record is for

abuse of discretion only); Morales v. Turman

, 562 F.2d 993, 996 (5th Cir. 1977)

(same).

Even assuming arguendo that the Liljeber gs did not waive this issue on

appeal and that we were to conclude that the district court abused its discretion

in denying their motion to supplement, the supplemental material would not alter

our conclusions on appeal.

35 t herefore quite obviously did not rely on the supplemental

materials proffered with the motion. Under these circumstances,

even if we were to consider this issue, the Liljebergs could not

show an abuse of discretion on appeal. 43

I n sum, we conclude that the district court’s findings that

Lifemark engaged in bad faith, collusion, and self-dealing to force

the judicial sale of the hospital, chill the bidding at the sale,

and purchase the hospital are clearly erroneous. In the absence of

any breach of duty to St. Jude or Liljeberg Enterprises on the part

of Lifemark or a Lifemark breach having proximately caused any loss

to the Liljebergs resulting from the Travelers lien, there is no

bad faith or collusion in Lifemark’s decision to bid at the

judicial sale or Lifemark’s purchase of the hospital at the

legally-permitted two-thirds of its appraised value.

The other side of the no-duty coin is that Lifemark was free

to act in its own self-interest, including allowing Lifemark, which

had the license, to own and operate the hospital, and to escape the

burden of the pharmacy agreement, which functio ned much like an

overriding royalty payment. As Lifemark persuasively argues on

appeal, and the record is clear: the various lending and lease44 C f. Clark v. America’s Favorite Chicken Co.

, 110 F.3d 295, 297-98 (5th

Cir. 1997) (under Louisiana law, it is not a breach of the implied covenant of

good faith and fair dealing to engage in conduct which is expressly allowed under

a contract).

36 transactions and instruments, as agreed to by the Liljebergs and

Lifemark, permitted the outcomes which Lifemark sought in Lifemark

Hospitals of Louisiana, Inc.’s bidding at the judicial sale as well

as Lifemark’s decision not to renew the lease on the medical office

building. 44 Lifemark Hospitals, Inc. was legally entitled to obtain

permission to bid credits, and received a court order granting such

permission, to give it the option to bid at the sale should the

circumstances warrant. The district court’s findings and the

Liljebergs’ arguments on appeal offer no logical connection between

a decision to seek authority to bid credits and the absence, let

alone the chilling, of other bids on the hospital property at the

judicial sale—the credits represent a debt Lifemark Hospitals, Inc.

was owed, so a payment in cash and credits or simply in cash would

make no difference for the bottomline in Lifemark’s accounting.

Moreover, although the Liljebergs argue that Lifemark’s knowledge

that the priority of the lease on the hospital and collateral

assignment of rents would deter other bidders at the judicial sale

somehow supports their conspiracy theory, it demonstrates quite the

opposite. As counsel for Lifemark aptly noted at oral argument,

the judicial sale could almost be considered “chill-proof,” in that

it is hard to imagine anyone bidding $26 million on a property that45 See generally Boyd v. Farmers-Merchants Bank & Trust Co. , 433 So.2d

339, 342 (La. App. 3 Cir.) (“As a general rule, a judicial sale cannot be

attacked once the sale is consummated in the absence of fraud or ill

practices.”), writ denied , 440 So.2d 732 (La. 1983).

46 C ompare Acadian Prod. Corp. of La. v. Savanna Corp.

, 63 So.2d 141, 142

(La. 1953) (“Among the requirements for the legal seizure and sale of property

in satisfaction of a judgment are to be fo und ... those prohibiting any

combination or conspiracy to stifle competition and chill t h e bidding at a

judicial sale.”); Pease v. Gatti

, 12 So.2d 684, 690 (La. 1942) (“This court has

repe a tedly held that, where there is an agreement to stifle competition at

judicial sales and where one of the parties to the agreement is a party to the

proceeding, the sale may be annulled by the injured party.”); Konen v. Konen

, 115

So. 490, 491 (La. 1928) (“Hence the concealment or misrepresentation of facts,

amounting to fraud, is not the only cause for annulling a judicial sale, but

anything said or done by one who becomes an adj udicatee, for the purpose of

preventing competition at the sale, or, in other words, for the purpose of

chilling it, which is reasonably capable of doing so, and has that effect, will

be sufficient to annul the sale.”); First Nat’l Bank of Abbeville v. Hebert

, 111

So. 66, 69 (La. 1926) (“An agreement whereby parties engage not to bid against

each other at a public auction, especially where t he auction is required or

directed by law, as in sales of property under execution, and where one of the

parties to the agreement is a party to the proceeding, is a sufficient cause for

annulling the sale.”).

37 would, by virtue of the lease and collateral assignment of rents,

provide no cash-flow until at least sixteen years later, in 2010.

On the basis of its clearly erroneous “conspiracy the ory”

findings, the district court erred as a matter of law in

disregarding long-standing Louisiana jurisprudence that a judicial

sale, once completed, cannot generally be undone. 45 Freed from the

district court’s clearly erroneous “conspiracy theory” findings,

the evidence concerning Lifemark’s actions following Travelers’s

filing its judicial mor tgage does not support findings of bad

faith, collusion, and self-dealing on the part of Lifemark that

would permit the district court to overturn the confirmed judicial

sale. 46 Rather, the evidence considered against the entirety of the

record shows that Lifemark’s actions consisted of c ommercially38

reasonable, albeit aggressive, steps in reaction to the Travelers

judgment, all of which were within their contractual rights and

applicable law.

We have detected several warring premises int ernal to the

Liljebergs’ theories. In concluding this section, we mention one

more: the Liljebergs attempt to maintain both that Lifemark never

intended to per form under the various commercial instruments

between the parties and that Lifemark drafted these instruments to

al low L ifemark to engage in conduct it challenges—declining to

renew the lease on the medical office building, purchasing the

hospital at a judicial sale, and terminating the pharmacy agreement

based on a cross-default provision.

C.

Lifemark argues that the district court erred in denying its

claim for a deficiency judgment, a sum of $20,600,060.91 that St.

Jude owed Lifemark Hospitals, Inc. under the renewal promissory

note after Lifemark Hospitals of Louisiana, Inc.’s purchase of the

hospital at the judicial sale.

The Liljebergs respond that the same bad faith and collusive

conduct that tainted the judicial sale also bars any claim for

deficiency and that the alleged defau lts and acceleration were

caused by the bad faith and collusive wrongdoing of Lifemark, which

alone is legally responsible. The district court denied Lifemark’s

deficiency judgment claim based on its decision to overturn the47 The fourth covenant of the collateral mortgage provides:

The Property is to remain mortgaged and hypothecated until the full

and f inal payment of the aforesaid indebtedness in principal and

interest, attorney’s fees, insurance premiums, costs and expenses,

the Mortgagor hereby binding itself, its heirs, successors and

assigns not to make a conveyance, mortgage, transfer or sale of the

Property until full and final payment of the aforesaid indebtedness

including principal and interest, attorney’s fees, insurance

premiums, costs and expenses, unles s the Mortgagee expressly

consents to such conveyance or mortgage in writing. The Mortgagor

hereb y agrees that should the Property be mortgaged, sold or

transferred, either with or without the assumption of the aforesaid

indebte dness, such sale, transfer or mortgage shall constitute a

39 judicial sale, such that “[a]ll rents which would have been paid

absent the judicial sale will be deemed paid on the mortgage in

favor of [Lifemark Hospitals, Inc.] and the mortgage note shall be

deemed current at the time of transfer,” and, “[i]nasmuch as this

Court has restored the status quo prior to sale and reinstated the

collateral mortgage, collateral mortgage note, and note, the claim

of [Lifemark Hospitals, Inc.] on the note is disallowed.” Having

found the district court’s findings and conclusions in favor of

this order to be in error, and rejected the Liljebergs’ arguments

on appeal, we must in turn reverse the district court’s order

denying this claim. As discussed i nfra in connection with the

motion to assume the pharmacy agreement, the judicial mortgage and

lien on the hospital won in court by Travelers and the judicial

sale that followed were defaults under the fourth covenant of the

collateral mortgage. These events of default gave Lifemark the

contractually-secured right to accelerate the renewal promissory

note and immediately recover all amounts and interest due

thereunder. 47 We remand to the district court for calculation ofbreach of this contract and the obligations herein set forth, and

the Note shall, at the option of the Mortgagee, immediately mature

and become due and payable, anything contained herein to the

contrary notwithstanding, and it shall be lawful for the Mortgagee

to proceed with enforcement of its mortgag as hereinabove set forth.

48 We therefore assume, without deciding, that the Liljebergs did not

w aive this point of error by failing to raise it before the distr ict court,

notwithstanding that the relief they sought in seeking to alter or amend the

distr ict court’s findings and judgment specifically requested only that the

district court “defer the due date for reimbursing Lifemark with the amount of

the Travelers judicial mortgage until after the single business enterprise has

paid all the money judgments awarded in favor of Liljeberg Enterprises and St.

Jude.”

40 the amount of deficiency owed to Lifemark Hospitals, Inc. and for

entry of judgment in that amount.

D.

On its cross-appeal, Liljeber g Enterprises argues that the

district court erred in requiring St. Jude and Liljeberg

Enterprises to reimburse Lifemark the approximately $7.8 million it

paid to Travelers. Having reversed the district court’s order

overturning the judicial sale, we must reverse the order of

reimbursement, part of the district court’s set -aside of the

judicial sale. Because Lifemark will maintain ownership of the

hospital pursuant to the confirmed judicial sale, the Liljebergs

need not reimburse Lifemark’s payment of the Travelers debt made at

foreclosure. Liljeberg Enterprises’s cross-appeal on this issue is

now moot. 48

VI. Cause No. 93-1794

The district co urt concluded in Cause No. 93-1794 that

Liljeberg Enterprises, as the debtor in possession in its Chapter

11 bankruptcy proceeding, should be allowed to assume the pharmacy41

agreement pursuant to 11 U.S.C. § 365. The district court rejected

Lifemark’s arguments that the pharmacy agreement terminated under

its own terms and was therefore not available to be assumed and

that Liljeberg Enterprises committed incurable defaults under the

pharmacy agreement which, pursuant to 11 U. S.C. § 365(b)(1),

precluded an order granting Liljeberg Enterprises’s motion to

assume.

11 U.S.C. § 365(a) provides that “the trustee, subject to the

court’s approva l, may assume or reject any executory contract or

unexpired lease of the debtor,” but 11 U.S.C. § 1107(a) provides

that, “[s]ubject to any limitations on a trustee serving in a case

under this chapter, and to such limitations or conditions as the

court prescribes, a debtor in possession shall have all the rights,

other than the right to compensation under section 330 of this

title,

... of a trustee serving in a case under this chapter.”

Thus, as a debtor in possession, Liljeberg Enterprises was required

to satisfy all the requirements of 11 U.S.C. § 365(b)(1) in order

to assume the pharmacy agreement as an executor y contract under

section 365:

If there has been a default in an executory contract or

unexpired lease of the debtor, the trustee may not assume

such contract or lease unless, at the time of assumption

of such contract or lease, the trustee—

(A) cures, or p rovides adequate assurance that the

trustee will promptly cure, such default;

(B) compensates, or provides adequate assurance that the

trustee will promptly compensate, a party other than the

debtor to s uch contract or lease, for any actual

pecuniary loss to such party resulting from such default;

and49 11 U.S.C. § 365(b)(1).

50 P hoenix Exploration, Inc. v. Yaquinto (In re Murexco Petroleum, Inc.)

, 15 F.3d 60, 62-63 (5th Cir. 1994) (emphasis added); accord Stewart Title Guar.

Co. v. Old Republic Nat’l Title Ins. Co.

, 83 F.3d 735, 741 (5th Cir. 1996); cf.

Phillips v. First City, Texas–Tyle r

, N.A. (In re Phillips)

, 966 F.2d 926, 935

(5th Cir. 1992) (holding that a partnership agreement does not “remain[] an

executory contract after the Final Judgment decreed that [one partner] breached

the partnership agreement, awarded [another partner] damages, and ordered [the

partnership] dissolved, and after passage of the Final Judgment’s 90-day

prescription for winding up [the partnership]”).

42 (C) provides adequate assurance of future performance

under such contract or lease. 49

A.

As an initial matter, Li femark argues that the pharmacy

ag reement was no longer an executory contract subject to

assumption. To determine if a contract is executory for purposes

of this provision, “the r elevant inquiry is whether performance

remains due to some extent on both sides,” such “that an agreement

is executory if at the time of the bankruptcy filing , the failure

of either party to complete performance would constitute a material

breach of the contract, thereby excusing the performance of the

other party.” 50

Lifemark argues that the district court erred in treating the

pharmacy agreement as an executory contract subject to assumption

by Liljeberg Enterprises. They contend that, when Lifemark ceased

to lease the hospital on October 28, 1994, the pharmacy agreement

terminated by its own terms pursuant to section 5.1(e). It

provides: “This Agreement shall be effective as set forth above and

shall continue in full force and effect, unless sooner terminated51 T rigg v. U.S. Dep’t of Interior (In re Trigg)

, 630 F.2d 1370, 1374

(10th Cir. 1980); accord Gloria Mfg. Corp. v. Int’l Ladi es’ Garment Workers’

Union , 734 F.2d 1020, 1022 (4th Cir. 1984).

52 “The Bankruptcy Reform Act of 1978, Pub. L. 95-598, November 6, 1978,

92 Stat. 2549, repealed the former Bankruptcy Act of 1898 and replaced that Act

with the Bankruptcy Code, Title 11 of the United States Code, effective October

1, 1979.” Mitsubishi Int’l Corp. v. Clark Pipe & Supply Co., Inc.

, 735 F.2d 160,

162 n.2 (5th Cir. 1984).

53 H ertzberg v. Loyal Am. Life Ins. Co. (In re B&K Hydraulic Co.) , 106

B.R. 131, 134 (Bankr. E.D. Mich. 1989).

43 with the first to occur of the following: ... (e) LIFEMARK ceases

to lease or operate Hospital.”

Liljeberg Enterprises filed for Chapter 11 relief on January

27, 1993. Lifemark’s lease of the hospital did not end until

almost twenty months later–when Travelers foreclosed and Lifemark

bought the hospital at the judicial sale. There is no dispute but

that throughout this period the pharmacy agreement was in full

force and effect and a failure of either party to complete

performance would have been a material breach.

Lifemark argues, however, that a line of authority out of the

Tenth Circuit provides that “[a] contract that provides for

termination on the default of one party may terminate under

ordinary principles of contract law even if the default ing party

has filed a petition under the Ba nkruptcy Act.” 5 1 Although this

holding arose under the old Bankruptcy Act, 52 Lifemark argues that

it rem ains valid under the Bankruptcy Code, pointing to a

bankruptcy court’s conclusion to that eff ect. 5 3 That Michigan

bankruptcy court reviewed several decisions involving the issue of54 Id. at 135-36 (emphasis added).

44 whether a contract terminated by its own terms or time limits postpetition and concluded that “the issue must be whether termination

requires the non-debtor party to undertake some post-petit i on

affirmative act,” such that, “[w]hen termination of the contract

requires an affirmative act of the non-debtor party, the contract

remains executory because such an act is stayed under 11 U.S.C. §

362(a),” but, “[w]hen termination occurs without any action by the

non-debtor party

, the contract is no longer executory and no longer

subject to assumption or rejection.” 54

The parties have pointed to no Fifth Ci rcuit decisions

treating this issue, and we have located none. The Liljebergs

argue that even under this authority the pharmacy agreement did not

terminate post-petition where Lifemark not only participated in the

alleged defaults, they intentionally precipit ated them; that,

under the pharmacy agreement and Lo uisiana law, the pharmacy

agreement could not terminate automatically but required Lifemark

to place Liljeberg Enterprises in default and obtain judicial

dissolution.

We agree and conclude that the district court did not err in

concluding that the pharmacy agreement was an executory agreement

subject to assumption by Liljeberg Enterprises. Lifemark’s

affirmative acts—its purchase of the hospital—caused the lease to

be extinguished under the doctrine of confusion, which in turn55 S ee L A

. C IV

. C ODE art. 2013 & cmts. (b)-(c); id. 2015, cmt. (c); id. 2017

& cmt. (b); id. 2024; Mennella v. Kurt E. Schon E.A.I., Ltd.

, 979 F.2d 357, 361

& n.16 (5th Cir. 1992); Pembroke v. Gulf Oil Corp.

, 454 F.2d 606, 611 (5th Cir.

1971).

45 caused an y alleged default under section 5.1(e) of the pharmacy

agreement. Moreover, Louisiana law provides that, except in

limited circumstances which the district court correctly concluded

do not apply here, a contract will not terminate unless the nonbreaching party seeks judicial dissolut ion of the contract or at

least provides notice of the intent to exercise the right to

terminate the contract for default, even if the contract explicitly

provides for automatic termination. 55 And section 5.1(e) does not

do so. Lifemark was required to give Liljeberg Enterprises written

notice of termination under section 15 of the pharmacy agreement.

In short, terminating the pharmacy agreement for default under

section 5.1(e) required an affirmative act of Lifemark. Lifemark

gave no notice and did not seek judicial dissolution. The pharmacy

agreement remained executory.

B.

Turning then to whether the district court erred in allowing

Liljeberg Enterprises to assume the executory pharmacy agreement,

under section 365, “[a]n assumed lease or contract will remain in

effect through and then after the completion of the

reorganization,” and “[t]he n on-debtor party to the agreement is

not released from its duties and must continue to perform;

likewise, the debtor must continue to perform or pay for the56 Century Indem. Co. v. Nat’l Gypsum Co. Settlement Trust (In re Nat’l

Gypsum Co.) , 208 F.3d 498, 505 (5th Cir.), cert. denied , 531 U.S. 871 (2000).

57 I d. (quoting MMR Holding Corp. v. C & C Consultants, Inc. (In re MMR

Holding Corp.) , 203 B.R. 605, 612 (Bankr. M.D. La. 1996)).

58 R ichmond Leasing Co. v. Capital Bank , N.A. , 762 F.2d 1303, 1309 (5th

Cir. 1985).

59 N at’l Gypsum

, 208 F.3d at 505 (quoting In re Eagle Bus Mfg., Inc.

, 148

B.R. 481, 483 (Bankr. S.D. Tex. 1992) (quoting 255 Turnpike Assocs. v. J.W. Mays,

Inc. (In re J.W. Mays, Inc.) , 30 B.R. 769, 772 (Bankr. S.D.N.Y. 1983))).

60 Richmond , 762 F.2d at 1310.

46 services or other costs that are not discharged.” 56 We have further

explained that “‘[t]he act of assumption must be grounded, at least

in part, in the conclusion that maintenance of the contract is more

beneficial to the estate than doing withou t the other party’s

services,’” 57 a determinat ion that assumption of the pharmacy

agreement by Liljeberg Enterprises “represented a proper exercise

of business judgment.” 58

Section 365(b)(1) essentially “‘allows a debtor to ‘continue

in a beneficial contract provided, however, that the other party is

made whole at the time of the debtor’s assumption of said

contract.’’” 59 That is, “[s]ection 365 is intended to provide a

means whereby a debtor can force another party to an executory

contract to continue to perform under the contract if (1) the

debtor can provide adequate assurance that it, too, will continue

to perform, and if (2) the debtor can cure any defaults in its past

performance.” 60 As such, “the debtor party must take full account

of the cost to cure all existin g defaults owed to the non-debtor61 Nat’l Gypsum , 208 F.3d at 505.

62 R ichmond

, 762 F.2d at 1310 (quoting In re Sapolin Paints, Inc.

, 5 B.R.

412, 421 (Bankr. E.D.N.Y. 1980)).

63 See id. at 1307-09 & n.4.

47 party when assessing whether the contract is beneficial to the

estate.” 61 Further, to determine if the debtor in possession has

provided “adequate assurance” of future performance, we have held

that courts must look to “‘factual conditions,’” including

“consider[ation of] whether the debtor’s financial data indicated

its ability to generate an income stream sufficient to meet its

obligations, the general economic outlook in the debtor’s industry,

and the presence of a guarantee.” 62

To the extent that such determinations turn on contested

factual disputes, and not errors of law, we review only for clear

error and not under de novo review. 63 Lifemark argues that,

pursuant to 11 U.S.C. § 365(b)(1), the district court should have

denied Liljeberg Enterprises’s motion to assume because Liljeberg

Enterprises’s transactional and operational defaults under the

pharmacy agreement are incurable and because Liljeberg Enterprises

cannot provide adequate assurance of future performance.

Lifemark’s arguments regarding transactional defaults require

interpretation of several contractual documents. “The district

court’s interpretation of a contract is reviewed de novo,” and

“[t]he contract and record are reviewed independently and under the64 S t. Martin v. Mobil Exploration & Produc ing U.S. Inc. , 224 F.3d 402,

409 (5th Cir. 2000).

65 N at’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Circle, Inc.

, 915 F.2d

986, 989 (5th Cir. 1990) (per curiam); s ee also Gebreyesus v. F.C. Schaffer &

Assocs., Inc.

, 204 F.3d 639, 642 (5th Cir. 2000) (“Under Louisiana law, the

interpretation of a contract and the determination of ambiguities are questions

of law. Where a court determines that ambiguity exists and makes factual

determinations of intent, we review those factual findings for clear error.”

(citations omitted)). As the district court correctly noted, the Louisiana Civil

Code’s contract interpretation provisions were substantially amended by Act 331

of 1984, whic h was enacted after the pharmacy agreement was entered into on

February 10, 1983. However, the cited provisions of the Civil Code and other

principles of contract inter pretation under Louisiana law cited and applied

herein did not substantively change the law and so there are no retroactivit y

concerns presented by citing these post-Act 331 cases and Code provisions. C f.

Morris v. Friedman , 663 So.2d 19, 23-24 (La. 1995).

66 S ee Exxon Corp. v. Crosby-Mississippi Res., Ltd.

, 154 F. 3d 202, 205

(5th Cir. 1998).

67 Nat’l Union , 915 F.2d at 989 (citation omitted).

48 same standards that guided the district court.” 64 At the same time,

“if the interpretation of the contract turns on the consideration

of extrinsic evidence, such as evidence of the intent of the

parties, the standard of review is clearly erroneous,” but, if

“intent is determined solely from the language of the c ontract,

then contractual interpretation is purely a question of law,” and

“[t]he threshold question whether e xtrinsic evidence should be

considered in determining the intent of the parties is itself a

question of law and thus reviewable de novo.” 65

In this diversity case, we look to Louisiana law for the

applicable standard of contract interpretation. 66 “Under Louisiana

law, a contract is the law between the parties, and is read for its

plain meaning.” 67 Thus, “[u]nder Louisiana law, where the words of

a contract are clear and explicit and lead to no absurd68 Am. Totalisator Co., Inc. v. Fair Grounds Corp.

, 3 F.3d 810, 813 (5th

Cir. 1993).

69 Davis Oil Co. v. TS, Inc. , 145 F.3d 305, 308 (5th Cir. 1998) (quoting

Lloyds of London v. Transcon. Gas Pipe Line Corp. , 101 F.3d 425, 429 (5th Cir.

1996)).

70 O mnitech Int’l, Inc. v. Clorox Co.

, 11 F.3d 1316, 1326 (5th Cir. 1994)

(quoting L A

. C IV

. C ODE art. 2046).

49 consequences, the contract’s meaning and the intent of its parties

must be sought within the four corners of the document and cannot

be explained or contradicted by extrinsic evidence,” such that,

“[i]f a court finds the contract to be unambiguous, it may construe

the intent from the face of the document—wi thout considering

extrinsic evidence—and enter judgment as a matter of law.” 6 8

Further, “‘[u]nder Louisiana law, a contract is ambiguous when it

is uncertain as to the parties’ intentions and susceptible to more

than one reasonable meaning under the circumstances and after

applying established rules of construction.’” 69 Put another way,

“under Louisiana law, ‘when the words of the contract are clear and

explicit and lead to no absurd consequences, no further

interpretation may be made in search of the parties’ intent,’” and

“[t]his established rule of strict construction does not allow the

parties to create an ambiguity where none exists and does not

authorize courts to create new contractual obligation s where the

language of the written documen t clearly expresses the intent of

the parties.” 70

The Liljebergs and the district court also rely on the rule

that “under Louisiana law doubts or ambiguities as to the meaning71 A moco Prod. Co. v. Forest Oil Corp.

, 844 F.2d 251, 255 n.7 (5th Cir.

1988); accord Liljeberg Enters. Inc. v. Lifemark Hosps. of La., Inc.

, 620 So.2d

1331, 1334-35 (La. App. 4 Cir.) ( “Interpretation of a contract is the

determination of the common intent of the parti es. LSA-C.C. 2045. When the

words of a contract are clear and explicit and lead to no absurd consequences,

no further interpretation may be made in search of the parties’ intent. LSA-C.C.

2046. The words of a contract must be given their generally prevailing meaning.

LSA-C.C. 2047. Each provision in a contract must be interpreted in light of the

other provisions so that each is given the meaning suggested by the contract as

a whole. LSA-C.C. 2050. In case of doubt that cannot be otherwise resolved, a

provision in a contract must be interpreted against the party who furnished its

text. LSA-C.C. 2056.”), w rits denied , 621 So.2d 818 (La. 1993). On appeal,

Lifemark does not deny that it drafted the pharmacy agreement. S ee id. at 1338

(identifying “the attorney who drafted the agreement for Lifemark”).

72 Lewis v. Hamilton , 652 So.2d 1327, 1330 (La. 1995).

50 of a contract must, if not otherwise resolvable, be eliminated by

interpreting the contract against the party who prepared it.” 71 The

Supreme Court of Louisiana has applied this rule in the context of

“ an adhesionary contract,” noting that “any contradiction or

ambiguity should be construed against Titan, the party who drafted

the policy,” but that “[t]his general rule of construction

... only

applies when there are two equally reasonable interpretations of

the contractual provision in question.” 72

The statutor y provision, Louisiana Civil Code article 2056,

captioned “Standard-form contracts,” provides both that, “[i]n case

of doubt that cannot be otherwise resolved, a provision in a

contract must be interpreted against the party who furnished its

text” and that “[a] c ontract executed in a standard form of one

party must be interpreted, in case of doubt, in favor of the other

party.” This language suggests it will primarily be applied to

standard-form or adhesionary contracts or, as the Supreme Court of

Louisiana has m ost often recently applied article 2056, to73 E .g.

, Succession of Fannaly v. Lafayette Ins. Co.

, 805 So.2d 1134, 1138

(La. 2002); La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co. , 630 So.2d 759,

764 (La. 1994).

74 S ee, e.g.

, United States Ab atement Corp. v. Mobil Exploration &

Producing U.S., Inc. (In re United States Abatement Corp.)

, 79 F.3d 393, 400 (5th

Cir. 1996) (case involving oil platform maintenance contract); Huggs, Inc. v. LPC

Energy, Inc.

, 889 F.2d 649, 653 (5th Cir. 1989) (case involving mineral lease);

Brown v. Drillers, Inc.

, 630 So.2d 741, 754 n.20 (La. 1994) (“Applying this rule

[Louisiana Civil Code article 2056] in contexts like this one is appropriate in

that it re c ognizes the reality that the releasee is responsible for the broad

release language and that any ambiguity should thus be construed against the

releasee.”); cf. Mott v. ODECO

, 577 F.2d 273, 278 (5th Cir. 1978) (case involving

master service contract relating to offshore oil-drilling platform) (ap p lying

pre-article 2056 rule in Louisiana Civil C ode articles 1957 and 1958, which

embodied the same general rule of Louisiana jurisprudence).

75 Shell Offshore, Inc. v. Marr , 916 F.2d 1040, 1046 (5th Cir. 1990).

51 insurance contracts. 73 Neither this court nor the Supreme Court of

Louisiana has, however, confined the prov ision to these types of

contracts. 74

At the same time, we have held that, “while the jurisprudence

of Louisiana has established a rule of contractual interpretation

which construes ambiguity against the party drafting the document

in question, neither party is deemed to be the scrivener when, as

here, the initial draft is modified and remodified in a series of

exchanges be tween the parties to produce an execution draft

reflecting give and take between obligor and obligee.” 75

We first must answer whether the judicial lien and foreclosure

of the hospital were defaults under the c ollateral mortgage and

lease and, if so, whether they were transactional defau lts under

the pharmacy agreement’s cross-default provision. Section 5.1(b)

of the pharmacy agreement provides:52

This Agreement shall be effective as set forth above and

shall continue in full force and effect, unless sooner

terminated with the first to occur of the following:

... (b) Either party shall remain in breach of this Agreement

for a continuous, unabated 30-day period after receipt of

written notice of such breach from the other party.

Should OPERATOR [Liljeberg Enterprises, Inc.]; or any of

LIFEMARK’s corporate affiliates, be in default of any

other contractual agreement with LIFEMAR K or any of

LIFEMARK’s corporate affiliates, including, but not

limited to, the lea se relating to the Hospital, then

OPERATOR [Liljeberg Enterprises, Inc.] shall be in breach

of this Agreement.

Section 5.1(b) placed the Liljebergs in breach of the pharmacy

agreement by virtue of the default under the fourth covenant of the

collateral mortgage through the sale of the hospital. That

covenant provides that “[t]he Mortg agor [St. Jude] hereby agrees

that should the [hospital] be mortgaged, sold or transferred,

either with or withou t the assumption of the aforesaid

indebtedness, such sale, transfer or mortgage shall constitute a

breach of this contract and the obligations herein set forth.”

Lifemark argues that the judicial mortgage and lien placed on

the hospital was also a transactional default under the fourth and

fifth cov enants of the collateral mortgage. The fourth covenant

provides in relevant part, in addition to the previously-quoted

language, that “[t]he [hospital] is to remain mortgaged and

hypothecated until the full and final payment of the aforesaid

indebtedness

... the Mortgagor [St. Jude] hereby binding itself

...

not to make a conveyance, mortgage, transfer or sale of the

[hospital] until full and final payment of the aforesaid

indebtedness ..., unless the Mortgagee [Lifemark Hospitals, Inc.]53

expressly consents to such conveyance or mortgage in writing.” The

fifth covenant provides, in pertinent part, that “should there be

created or suffered to be created any other lien or charges

superior in rank to the lien and mortgage herein granted,

... then

and in any of such events, the Note in principal and interest and

all other indebtedness secured hereby shall, at the option of the

Mortgagee [Lifemark Hospitals, Inc.] shall, at the option o f the

Mortgagee [Lifemark Hospitals, Inc.], immediately become due and

payable ....” Finally, Lifemark argues that the Travelers lien

created a default of the lease between St. Jude and Lifemark, which

provides in Article 11.1, entitled “Warranty o f Peaceable

Possession and Title,” that “[d]uring the Lease Term, LESSOR [St.

Jude] represents and covenants that it will not create nor allow to

exist any liens, encumbrances or charges relating to obligations of

the LESSOR [St. Jude] affecting the Leased Premises except liens,

such as paving, water and sewerage liens, resulting from a special

assessment by a Governmental Au thority and the Act of Collateral

Mortgage ... and any other mortgage instruments now or hereafter

executed to secure the [Lifemark Hospitals, In c.] loan ... or

otherwise agreed to in writing by [Lifemark Hospitals, Inc.].”

It is important to note that the collateral mortgage was

signed by St. Jude and Lifemark Hospitals, Inc., not Liljeberg

Enterprises and Lifemark Ho spitals of Louisiana, Inc., while the

lease of the hospital was signed by St. Jude and Lifemark Hospitals

of Louisiana, Inc., not Liljeberg Enterprises and Lifemark76 Edwards v. Your Credit Inc. , 148 F.3d 427, 436 (5th Cir. 1998).

77 Duhon v. Mobil Oil Corp. , 12 F.3d 55, 58 (5th Cir. 1994).

54 Hospitals of Louisiana, Inc. As a result, Lifemark argues on

appeal that the first reference to Lifemark in section 5.1(b) of

the CPA is a typographical error, and that the provision should

read “or any of OPERATOR’s corporate affiliates,” such that any

default of St. Jude, which is an affiliate of the “Operator,”

Liljeberg Enterprises, is a default under the pharmacy agreement.

The difficulty for Lifemark is that it is required to seek

reform ation or, to avoid absurdity, reading of the word

“OPERATOR’S” in to section 5.1(b) for “LIFEMARK’S.” Lifemark has

never whole-heartedly sought reformation an d with good reason.

Under Louisiana law, “[r]eformation is an equitable remedy that may

be used when a contract between the parties fails to express their

true intent, either because of mutual mistake or fraud.” 76 Indeed,

“[t]o establish the appropriateness of reformation, [Lifemark] had

to prove by clear and c onvincing evidence that the [pharmacy

agreement], as written, contained a mutual mistake and did not

comport with the parties original intent.” 77

On this appeal, Lifemark stresses that the dist rict court

erred in rejecting its interpretation of secti on 5.1(b). The

district court concluded that the language in section 5.1(b) could

have be en prepared for Liljeberg Enterprises’s benefit so that a

default by Lifemark or a Lifemark affiliate would have allowed78 T ex. E. Tran smission Corp. v. Amerada Hess Corp. , 145 F.3d 737, 742

(5th Cir. 1998).

55 Liljeberg Enterprises to terminate the pharmacy agreement or seek

damages. Lifemark replies that this suggested rational basis for

the provision’s otherwise embarrassing phrasing is not so simple.

Rather, this rescue requires a finding that the scriveners made

four errors in the provision, instead of the one error that would

exist under Lifemark’s interpretation. Lifemark’s argument, while

strong, is not clear and convincing evidence of mutual mistake or

fraud in the formation of the pharmacy agreement.

Lifem ark also says that John Liljeberg testified that the

Travelers lien could cause a default under the pharmacy agreement’s

cross-default provision. As we read the testimony, Liljeberg did

not admit any mutual mistake in the drafting of section 5.1(b) of

the pharmacy agreement. Rather he indicated only that his attorney

was concerned that the Travelers lien and foreclosure might sever

the pharmacy agreement.

At the same time, “Louisiana courts will not interpret a

contract in a way that leads to unreasonable consequences or

inequitable or absurd results even when the words used in the

contract are fairly explicit.” 78 Lifemark argues that the assertion

that there was no typographical error in section 5.1(b) of the

pharmacy agreement is untenable because it leads to the nonsensical

result that, when read literally, section 5.1(b) provides that

Liljeberg Enterprises would be in breach if a Lifemark affiliate79 Id. (quoting L A

. C IV

. C ODE art. 2053).

56 defaulted under an agreement with another Lifemark affiliate.

Lifemark points out that this reading of section 5.1(b) is contrary

to its plain language. That provision sets forth a default on “the

lease relating to the Hospital” as an example of the type of breach

that will trigger the cross-default provision. They note that,

under Liljeberg Enterprises’s reading, such a breach of the lease

could not trigger the cross-default provision because it is not an

agreement between Liljeberg Enterprises and a Lifemark affiliate or

an agreement between two Lifemark entities.

This is a stronger argument for Lifemark’s interpretation of

section 5.1(b). Particularly so in light of several controlling

standar ds for contract interpretation under Louisiana law: (1)

Every provision of the contract must be interpreted in light of the

c ontract’s other provisions in order to give each provision the

meaning suggested by the contract a s a whole; (2) Contract

provisions susceptible to different meanings should be interpreted

so as not to neutralize or ignore any provision or treat any

provision as mere surplusage and so as to preserve the validity of

the contract; and (3) “‘A doubtful provision must be interpreted in

light of the nature of the contract, equity, usages, the conduct of

the parties before and after the formation of the contract, and of

other contracts of a like nature between the same parties.’” 79 Only

if these rules do not resolve the issue of how to interpret the80 Lewis , 652 So.2d at 1330.

57

contractual provision at issue should the provision be interpreted

against the party that drafted it, which default rule applies, in

any event, “only

... when there are two equally reasonable

interpretations of the contractual provision in question.” 80

We conclude that Lifemark’s interpretation of section 5.1(b),

providing that “LIFEMARK’S” should be read as “OPERATOR’S” in the

first reference in the provision, is the only construction of the

provision which gives it the meaning suggested by the pharmacy

agreement as a whole and which does not neutralize or ignore any

provision or treat any provision as mere surplusage. In

particular, this reading of section 5.1(b) makes sen se of the

example of the lease of the hospital between St. Jude and Lifemark

Hospitals, Inc., which was signed only a month after Liljeberg

Enterprises and Lifemark Hospitals of Louisiana, Inc. entered into

the pharmacy agreement. In short, reading section 5.1(b) literally

leads to absurd results, in ter alia , that Liljeberg Enterprises

would be required to answer for a default by on e of Lifemark’s

corporate affiliates, whereas the interpretation advanced by

Lifemark represents the most reasonable interpretati o n of the

provision in question following the established rules of contract

interpretation under Louisiana law.

We conclude that the district court erred in finding section

5.1(b) to be unenforceable and therefore severable from the58

pharmacy agreement pursuant t o section 10 and in finding that

“[t]he obligations contai ned in the [pharmacy agreement] are

severable from St. Jude’s obligations to [Lifemark Hospitals, Inc.]

under the mortgage and [Lif emark Hospitals of Louisiana, Inc.]

under the lease.”

We further hold that the district court clearly e rred in

finding, largely implicitly, that the Travelers judicial mortgage

and the judicial sale of the hospital were not defaults under the

fourth covenant of the collateral mort gage. The district court

also clearly erred in finding that “[t]he mortgage when viewed in

tandem with the lease was incapable of default since the

obligations owed by [Lifemark] under the lease would satisfy all of

the obligations due by St. Jude to [Lifemark Hospitals, Inc.] under

the terms of the financing.” Under the express terms of the

collateral mortgage, the hospital was not be mortgaged or sold.

These events were breaches of the non-financial coven ants of the

collateral mortgage and the und isputed fact is that the hospital

was both mortgaged and sold. It is no answer that the mortgage and

sale resulted fro m Lifemark’s actions and not Liljeberg

Enterprises’s or St. Jude’s. The express language of the fourth

covenant does not confine its prohibition of sales or mortgages of

the hospital to events caused by St. Jude. We have already

concluded that the district court clearly erred in finding the

superior rank of the Travelers judicial mortgage and the resulting

judicial sale of the hospital to have been the result of a breach81 S ee 11 U.S.C. § 365(b)(2)(A) (“Paragraph (1) of this subsection does

not apply to a default that is a breach of a provision relating to—(A) the ...

financial condition of the debtor at a ny time before the closing of the case

....”); id. § 365(e)(1)(A) (“Notwithstanding a provision in an executory contract

..., an executory contract ... of the debtor may not be terminated ..., at any

time after the commencement of the case solely because of a provision in such

contract or lease that is conditioned on—(A) the

... financial condition of the

59 of fiduciary duties, bad faith, or collusion on the part of

Lifemark. Moreover, the district court made no findings that

Liljeberg Enterprises had cured or provided adequate assurance that

it will promptly cure such a default, nor could the district court

have done so on this record.

The Liljebergs, however, attempt to escape the effect of the

default under the collateral mortgage by attacking the validity of

the cross-default provision of the pharmacy agreement. These

efforts are unavailing. The Travelers judgment which gave rise to

the judicial mortgage and lien and subsequent judicial sale of the

hospital did not occur solely becau se of Liljeberg Enterprises’s

financial con dition upon the filing of its Chapter 11 bankruptcy

petition. To assert that it did ignores the Liljebergs’ bad faith

conduct, as found by this court, in their dealings with Travelers.

Contrary to the Liljebergs’ assertion, releg ated to a footnote,

that the pharmacy agreement’s cross-default provision is legally

invalid because it impermissibly hinges on Liljeberg Enterprises’s

financial condition and ability to pay under the other contracts,

the cross-default provision does not run afoul of the exceptions to

11 U.S.C. § 3 65(b)(1)’s requirements provided under sections

365(b)(2)(A) or 365(e)(1)(A). 81debtor at any time before the closing of the case ....”). Compare In re Plitt

Amusement Co. of Wash., Inc. , 233 B.R. 837, 847 (Bankr. C.D. Cal. 1999); In re

Sambo’s Rests., Inc. , 24 B.R. 755, 757 (Bankr. C.D. Cal. 1982).

82 See EBG Midtown S. Corp. v. McLaren/Hart Envtl. Eng’g Corp. (In re

Sanshoe Worldwide Corp.)

, 139 B.R. 585, 597 (S.D.N.Y. 1992); Braniff, Inc. v. GPA

Group PLC (In re Braniff, Inc.)

, 118 B.R. 819, 845 (Bankr. M.D. Fla. 1990); see

also Plitt , 233 B.R. at 847.

83 Kopel v. Campanile (In re Kopel) , 232 B.R. 57, 64 (Bankr. E.D.N.Y.

1999).

60 There is non-binding authority from bankruptcy an d district

courts outside of this circuit, cited by the Liljebergs, for the

propositions that cross-default provisions do not integrate

otherwise separate transact ions or leases and that section 365

prohibits the enforcement of cross-default provisions where

enforcement would restrict th e debtor’s ability to assume an

executory contract. 82 We agree with another bankruptcy court which

recently synthesized these authoritie s and concluded that, while

“cross-default provisions are inherently suspect,” they are not per

se invalid in the bankruptcy context, and “a court should carefully

scrutinize the facts and circumstances surrounding the particular

transaction to determine whether enforcement of the provision would

contravene an overriding federal ba nkruptcy policy and thus

impermissibly hamper the debtor's reorganization.” 83 Before finding

that a cross-default provis ion involving a lease and non-lease

agreements, including a note, similar to that here, was

enforceable, the bankruptcy court concluded that “[f]ederal

bankruptcy policy is offended where the non-debtor party seeks84 Id. at 65-66.

85 Id. at 66.

61 enforcement of a cross-default provision in an effort to extract

priority payments under an unrelated agreement,” suc h that “[a]

creditor cannot use the protections afforded it by section 365(b)

(which requires curing of defaults and adequate assurances of

future payments as a precondition to assumption of an e xecutory

contract or unexpired lease) in order to maximize its returns by

treating unrelated unsecured debt as a de fact o priority

obligation.” 84 As such, “where the non-debtor party would have been

willing, absent the existence of the cross-defaulted agreement, to

enter into a contract that the debtor wishes to assume, the crossdefault provision should not be enforced, ” but “enforcement of a

cross-default provision should not be refused where to do so would

thwart the non-debtor party's bargain.” 85 The court also noted that

“[t]he fac t that legally separate entities are parties to the

various contracts does not of itself preclude enforcement of the

cross-default provision” and that, “[w]here documents are

c ontemporaneously executed as necessary elements of the same

transaction, such that there would have been no transaction without

each of the other agreements, the fact that nominally distinct

parties executed the agreements will not preclude enforcement of a

cross-default provision in favor of a p arty whose economic86 Id. at 67.

87 Pre-Trial Order at 34 ¶ 23 (R. 9212).

88 Id. at 32 ¶ 4 (R. 9210).

62 interests are identical to those of the entity that is party to the

document containing the cross-default provision.” 86

Here, there is ample support for the conclusion that the lease

and collateral mortgage of the hospital are interrelated with the

pharmacy agreement and tha t there would have been no pharmacy

agreement without the lease of the hospital or the loan secured by

the collateral mortgage. Indeed, the parties agreed in the pretrial order that St. Jude would not have entered into the lease of

the hospital to Lifemark if Lifemark had refused to enter into the

pharmacy agreement with Liljeberg Enterprises. 8 7 It is true that

the lease was signed a month after the pharmacy agreement was

execute d, but section 5.1(b) expressly contemplates “the lease

relating to the Hospital” as an instrument covered by the crossd efault provision. The parties also agreed that John Liljeberg

signed a letter of intent dated December 20, 1982, with Lifemark

concerning a proposal to develop St. Jude Hospital. 88 The district

court, in considering the effectiveness of an alleged default under

pharmacy agreement section 5.1(e), found that “although it is

evident that the [pharmacy agreement] was a part of the overall

transaction, it is not evident from the documents executed one

month after the [pharmacy agreement] that the [pharmacy agreement]89 Likewise, the Liljebergs’ unsupported contention in a footnote that

prin ciples of estoppel and waiver bar Lifemark’s challenge to Liljeberg

Enterprises’s assumption because Liljeberg Enterprises would not be in bankruptcy

were it not for Lifemark’s actions is undermined by our conclusion that the

district court clearly erred in its findings of bad faith and collusion and by

the absence of any f indings by the district court (or record evidence) that

Lifemark’s conduct was the cause of the debt to Travelers or St. Jude’s inability

to pay that debt, let alone Liljeberg Enterprises’s Chapter 11 bankruptcy.

63 was not severable from the remainder of the transaction,” such that

“a default under the [pharmacy agreement] would not collapse the

loan or the Lease.” That observation adds nothing. None nforcement of the cross-default provision, providing tha t a

default under the collateral mortgage or lease would collapse the

pharmacy agreement, would thwart Lifemark’s bargain in agreeing to

enter into the pharmacy agreement, all a part of the overall

transaction to finance the building of the hospital through a loan

secured by a collateral mortgage. Any finding, express or implied,

to the contrary by the district court is clearly erroneous on the

record before us. 89

C.

In sum, the distric t court erred in allowing Liljeberg

Enterprises to assume the pharmacy agreement pursuant to 11 U.S.C.

§ 365. Liljeberg Enterprises’s assumption of the pharmacy

agreement is barred pursuant to 11 U.S.C. § 365(b)(1)(A) by

defaults under the fourth covenant of the collateral mortgage in

the form of the judicial mortgage placed on and jud icial sale of

the hospital, which in turn resulted in an incurable default under90 In light of this conclusion, we need not address Lifemark’s additional

arguments regarding Liljeberg Enterprises’s transa ction defaults under the

collateral mortgage and lease, operational defaults under the pharmacy agreement,

or failure to provide adequate assurance of future performance under the pharmacy

agreement.

91 Contrast media is a diagnostic drug for use in, inter alia , radiology

procedures, which is generally swallowed or injected and which the district court

found may come in a kit or may be purchased separately.

64 section 5.1(b) of the pharmacy agreement. 90 We therefore reverse

the district court’s judgment in Caus e No. 93-1794 granting

Liljeberg Enterprises’s motion to assume the pharmacy agreement.

VII. Cause No. 93-4249

T he district court in Cause No. 93-4249 ruled that Lifemark

Hospitals of Louisiana, Inc., American Medical, and Tenet are

liable to Liljeberg Enterprises for damages in the total amount of

$12,432,905.92 for breac h of payment due under the pharmacy

agreement, specifically for the following: (1) $4,062,396 for

Lifemark’s failure to reimburse Liljeberg Enterprises its actual

acquisition costs for the period August 31, 1989 through June 1,

1993; (2) $700,000 as lost profits for Lifemark’s failure to

purchase contrast media through the date of trial from Liljeberg

Enterprises as required under the pharmacy agreement; 91 (3)

$2,023,571 for Lifemark’s wrongful disallowance of requested

payment to Liljeberg Ent erprises due to pricing differences and

other items not specifically addressed in the district court’s

judgment through the date of trial; (4) $103,61 7 for Lifemark’s

wrongfully deducting bad debt allowances from its payments on the

cost reimbursement portion of Liljeberg Enterprises’s billing92 The district court found that “Total Patenterals Nutrition (‘TPN’) is

a combination of a highly caloric dextrose or sugar solution wi th protein

additives prepared using the aseptic technique.”

93 The district court found that “[a]n ‘IV piggyback’ is a small volume

of fluid that is used to administer mostly antibiotic

... medications to patients

through an intravenous solution,” and “[a]n additive is added to IV piggybacks

in 90% of the IV piggybacks dispensed by [Liljeberg Enterprises].”

65 through the date of trial; (5) $150,275.60 for Lifemark’s failure

to implement minimum fee increases due to Liljeberg Enterprises

under the pharmacy agreement through the date of trial; (6) $54,055

for Lifemark’s failure to properly pay Liljeberg Enterprises under

the pharmacy agreement for TPN fees and to reimburse Liljeberg

Enterprises for chemotherapy kits provided to the nursing staff at

the hospital; 92 (7) $281,906.32 for pricing and quantity

differences; (8) $57,085 for Lifemark’s failure to properl y pay

Liljeberg Enterprises for nitroglycerin and insulin supplied under

the pharmacy agreement; and (9) an additional $5 million as damages

through the date of trial . The district court also ruled that

Liljeberg Enterprises is liable to Lifemark Hospitals of Louisiana,

Inc., American Medical, and Tenet for $741,879, spe cifically

$616,400 for Liljeberg Enterprises’s overcharges on piggyback fees

under the phar macy agreement 9 3 and $125,479 for Liljeberg

Enterprises’s failure to pay Medicare reimbursement due to Lifemark

Hospitals of Louisiana, Inc., American Medical, and Tenet under the

pharmacy agreement through the date of trial. The district court

denied all other claims by the parties for damages under the

pharmacy agreement.94 E. & J. Gallo Winery v. Spider Webs Ltd. , 286 F.3d 270, 277 (5th Cir.

2002); Harken Exploration Co. v. Sphere Drake Ins. PLC , 261 F.3d 466, 477 (5th

Cir. 2001).

95 St. Martin , 224 F.3d at 410.

96 Sulzer Carbomedics, Inc. v. Or. Cardio-Devices, Inc. , 257 F.3d 449,

459-60 (5th Cir. 2001) (interna l quotation marks omitted) (quoting D SC

Communications Corp. v. Next Level Communications , 107 F.3d 322, 330 (5th Cir.

1997) (quoting Terrell v. Household Goods Carriers’ Bureau

, 494 F.2d 16, 24 (5th

Cir. 1974))).

97 Nat Harrison Assocs., Inc. v. Gulf States Utils. Co. , 491 F.2d 578, 587

(5th Cir. 1974).

66 In the absen ce of an error of law, this court reviews the

district court’s award of damages for clear error only. 94 “If the

award of damages is plausible in light of the record, a reviewing

court should not reverse the award even if it might have come to a

different conclusion.” 95

We have generally held that, “[w]hile the district court may

not determine damages by speculation or guess, it will be enough if

the evidence show[s] the extent of the damages as a matter of just

and reasonable inference, although the result be only

approximate.” 96 Moreover, under Louisiana law, it is well-settled

that “[a]ctual damages must be proven; they cannot be speculative

or conjectural.” 97 Thus, “[w]hile the breaching party should not

escape liability because of difficulty in finding a perfect measure

of damages, the evidence must furnish data for a reasonably

accurate estimate of the amount of damages” such that it “appear[s]

reasonably evident that the amount allowed rests upon a certain98 Id. ; accord Mobil Exploration & Producing U.S., Inc. v. Cajun Constr.

Servs., Inc. , 45 F.3d 96, 101-02 & nn.18-19 (5th Cir. 1995).

99 M AC Sales, Inc. v. E.I. du Pont de Nemours & Co.

, 24 F.3d 747, 753 (5th

Cir. 1994) (quoting G uy T. Williams Realty, Inc. v. Shamrock Constr. Co.

, 564

So.2d 689, 695 (La. App. 5 Cir.), writ denied , 569 So.2d 982 (La. 1990)).

100 S ee Liljeberg Enters. Inc. v. Lifemark Hosps. of La., Inc.

, 620 So.2d

1331 (La. App. 4 Cir.), writs denied , 621 So.2d 818 (La. 1993). Neither party

challenges on appeal the district court’s determination of issue preclusion.

67 basis.” 98 More specifically, “Louisiana law is well-settled that

lost profits ‘must be proven with reasonable certainty and cannot

be based on conjecture and speculation.’” 99

The district court’s findings of breaches of the pharmacy

agreement meriting damage awards against Lifemark and many of

Lifemark’s arguments on appeal turn largely on interpretations of

various provisions of the pharmacy agreement, which are generally

governed by the standards we have described. On appeal, the

Liljebergs seek to go beyond the plain language of the pharmacy

agreement on the basis of Lifemar k’s alleged drafting of the

pharmacy agreement in bad faith. The argument is that the contract

was m ade deliberately ambiguous in order to injure Liljeberg

Enterprises. Likewise, the district court found ambiguity in

almost every relevant provision of the pharmacy agreement which was

not preclusively interpreted by the Louisiana state court in a

prior case involving these parties. 100 The district court further

concluded that, based on testimony that Lifemark entered into the

pharmacy agreement with the ultimate motive of terminating rather

than abiding by the contract, the pharmacy agreement should be101 Lifemark does not appeal the district court’s awards of $103,617 for

bad d ebt deductions and $54,055 for chemotherapy kits and TPN fees, nor the

district court’s failure to award $753,952 for Liljeberg Enterprises’s denial of

Medicaid reimbu rsements. Likewise, the Liljebergs do not appeal the order to

repay $616,400 for I.V. piggyback fee overcharges and $125,479 fo r Medicare

reimbursement denials.

68 interpreted against Lifemark where the pharmacy agreement is

susceptible to more than one interpretation. However, as Lifemark

aptly points out on appeal, Liljeberg Enterprises never argued that

the contract was fraudulently induced and the record shows that

John Liljeberg was fully apprised of the pharmacy agreement’s terms

and was represented by counsel and pharmacy consultants when he

negotiated the agreement and understood the agreement that he

signed on behalf of Liljeberg Enterprises. Under these

circumstances, in the absence of ambiguity, we look to the clear

and exp licit language within the four corners of the pharmacy

agreement to determine the pharmacy agreement’s meaning and the

intent of its parties.

On appeal, Lifemark challenges several of the district court’s

damage awards to Liljeberg Enterp rises. 1 01 We will address each

challenge in turn.

A.

Lifemark argues that the district court erred in awarding $5

million for Liljeberg Enterprises’s “circumvention claim” based

upon Liljeberg Enterprises’s theory that Lifemark “circumvented”

the pharmacy agreement, and thereby avoided paying Liljeberg

Enterprises, by not pay ing Liljeberg Enterprises for each102 See Nat’l Tea Co. v. Plymouth Rubber Co., Inc. , 663 So.2d 801, 811 (La.

App. 5 Cir. 1995) (holding that “the allowan ce of a double recovery in a

contractual situation, in which the damages are fixed, is inappropriate”).

69 administered dose of drugs provided by Liljeberg Enterprises and

obtaining drugs from other sources. Lifemark contends that these

claims fail because they are based upon erroneous interpretations

of sections 2.6 and 4.1 of the pharmacy agreement and because, in

any event, by relying solely on a procedurally flawed audit of

patient charts, L iljeberg Enterprises failed to adequately prove

damages. Lifemark also contends that the $5 million award for

“circumvention” overlaps impermissibly with the $700,000 award for

lost profits on contrast media (based upon Liljeberg Enterprises’s

argument under section 2.6(a)) and the $57,085 award for insulin

and nitroglycerin underpayments (based upon Liljeberg Enterprises’s

argument under section 4.1). 102

The provisions of the pharmacy agreement at issue here are

sections 2.6 and 4.1 and Exhibit B. Section 2.6(a) provides:

OPERATOR [Liljeberg Enterprises, Inc.] shall not provide,

nor be entitled to any compensation, for the following:

(a) all drugs and supplies utilized by the ancillary

departments of the Hospital in preparation for, during,

or immediately following departmental patient related

procedures, except those patient identifiable charges in

which the cost of the drug is not included in a fee or

charge for that procedure. Ancillary departments shall

include, but not be limited to, radiology,

anesthesiology, and clinical labs ....

Section 4.1 provides in pertinent part:

(a) As compensation for those pharmaceutical services

provided by OPERATOR [Liljeberg Enterprises, Inc.] as

specified above, and for pharmaceuticals and intravenous70

solutions furnished hereunder to inpatients or emergency

room patients, LIFEMARK shall pay to OPERATOR [Liljeberg

Enterprises , Inc.] the fee per procedure as shown on

Exhibit B, w hich is attached hereto and incorporated

herein for all purposes less 5% of such total of the fees

per procedure as allowance, for bad debt. The allowance

for bad debt shall be reviewed after each fiscal year of

the Hospital and changed to reflect the actual percentage

of uncollectable accounts for the preceding fiscal year

of the Hospital.

Exhibit B, in turn, provides:

LIFEMARK shall reimburse the OPERATOR [Liljeberg

Enterprises, Inc.] the greater of (i) the minimum fee set

forth below or (ii) a fee equal to 1.35 times c ost as

identified by invoice.

Drug Category Minimum Fee

Orals

Solid $ .53

Liquid .63

CII Controlled Drug .56

Suppositories .53

Parenterals

Per Dose 2.80

CII Controlled Drug 3.00

Partial Fill I.V.'s (Piggybacks) 5.25 (includes cost

of solution)

Miscellaneous

Opthalmics, Externals, Otics, etc. 1.40

Fees for items or categories not identified above shall

be established in a manner consisten t with the

development schedule.

LIFEMARK shall reimburse the OPERATOR [Liljeberg

Enterprises, Inc.] a flat fee for handling the following

items:

I.V. Handling fee for Non-Additive,

large volume parenterals $ 1.00

I.V. Additive Fee 1.70

i.103 Liljeberg Enters. , 620 So.2d at 1335-36.

71 Lifemark argues that the district court erroneously

interpreted section 4.1(a)’s provision for “the fee per procedure

as shown on Exhibit B” to mean that Liljeberg Enterprises was

entitled to a new fee each time a dose of the same drug or drug

combination was administer ed by a nurse or physician, even if

Liljeberg Enterprises performed no new pharmaceutical service.

Lifemark contends that section 4.1(a )’s “fee per procedure”

provision is unambiguous and simply m eans that Liljeberg

Enterprises is entitled to a single fee for each drug dispensed by

Liljeberg Enterprises’s pharmacy, irrespective of whether a nurse

or doctor later administers a dose or doses of the drug in a multistep process.

The state court’s preclusive holding establishes that, under

section 4.1(a), Liljeberg Enterprises is entitled to receive

reimbursement for actual acquisition costs in addition to the “fee

per proce dure” set forth in Exhibit B. 1 03 The question left

unanswered by the state court decision, however, and squarely

presented in this case is whether “fee per procedure” should be

understood to authorize Liljeberg Enterprises to receive a fee per

drug dispensed or pharmaceutical service provided by Liljeberg

Enterprises’s pharmacy or a fee per administered dose, as the

district court found. The district court concluded that the phrase104 See Davis Oil , 145 F.3d at 308.

72 “per procedure” is ambiguous and therefore turned to extrinsic

evidence.

This conclusion is correct if the parties’ intent as to the

meaning of this provision of section 4.1(a) is uncertain and this

provision is susceptible to more than one reasonable meaning under

the circumstances and after a pplying established rules of

construction. 104 The term “procedure” is nowhere defined in the

pharmacy agreement and is, in fact, use d in several different

contexts within this contract, including “departmental patient

related procedures” and “the Hospital's policies and procedures.”

Lifemark argues that the per-administered-dose meani n g is not

reasonable be cause it would compensate Liljeberg Enterprises for

services performed by other hospital employees or departments, such

a s nurses administering medication, and not simply for services

Liljeberg Enter prises actually performed. As support for this

argument, Lifemark notes that section 4.1(a) provides that the “fee

for procedure” shall be paid “[a]s compensation for those

pharmaceutical services provided by [Liljeberg Enterprises] as

specified above, and for pharmaceuticals and intravenous solutions

furnished hereunder to inpatients or emergency ro om patients.”

Section 2.4 provides that “pharmaceutical services” includes

“without limitation, drugs, medicines, and intravenous solutions.”

Even the most expansi ve, reasonable meaning attributable to105 See Gebreyesus , 204 F.3d at 642.

73 “ pharmaceutical services” under the pharmacy agreement would no t

incl ude services performed by other hospital employees or

departments within the scope of “pharmaceutical services provided

by [Liljeberg Enterprises].”

However, section 4 .1(a) also provides that the “fee per

procedure” shall be paid “for pharmaceuticals and intravenous

solutions furnished hereunder to inpatients or emergenc y room

patients.” In light of this language, the ordinary meaning of

“procedure” could reasonably encompass either meaning attributed by

the parties to “fee per procedure.” Moreover, the district court’s

interpretation of “fee per procedure” does not neutralize or ignore

or treat as mere surplusage any other provision of the pharmacy

agreement. Under these circumstances, we conclude that the

district court did not err in concluding that the phrase “fee per

procedure” in section 4.1(a) is ambiguous and looking to extrinsic

evidence.

Having found ambiguity exists in section 4.1(a), we review the

district court’s factual determinations of intent for clear error

only. 105 Lifemark argues that compensation per dose administered

results in grossly excessive charges. Additionally, Lifemark notes

that the district court interpreted the “fee per procedure” phrase

to apply differently to heparin flush kits and contends that there

is no reasoned basis for interpreting “per procedure” differently106 The district court’s unchallenged factual finding was that “[a]

‘heparin flush kit’ consists of three separate items that are administered at one

time and are in essence a single procedure or dose.”

107 Lifemark also argues that the district court erred in failing to award

Lifemark $51,771 as reimbursement for overpayments for multipl e doses of

nitroglycerin and insulin, where Liljeberg Enterprises charged multiple fees for

the pharmacy’s single act of dispensing these medications, and, based on the same

reasoning, Lifemark contends that the district court erred in awarding $57,085

for Lifemark’s alleged underpayments to Liljeberg Enterprises for nitroglycerin

and insulin supplied under the pharmacy ag reement. On the basis of our

conclusion that the district court’s interpretation of “fee for procedure” in

section 4.1(a) is not in error, we reject these points of error as well.

74 according to the type of drug dispensed when the pharmacy’s

involvement is the same. 106 However, Lifemark offers no persuasive

argument on appeal that there is clear error in the district

court’s finding, based on witness testimony, that the parties

intended for Liljeberg Enterprises to be compensated for each unit

administered with respect to the administration of multiple units

of medication or multiple administrations of medication from single

vials of medicine. We therefore conclude that the district court’s

interpretation of section 4.1(a)is correct. 107 The district court’s

additional finding that heparin flush kits are distinguishable

because allowing Liljeberg Enterprises compensation for each step

in the process and each legend drug item contained in a kit would

involve multiple reimbursement for a single, one-time p rocess of

administering the kit is consistent with the district court’s

general finding and is also not clearly erroneous.

ii.

Turning to section 2.6(a) of the pharmacy agreement, Lifemark

argues that the district court erred in ruling that Lifemark was108 Surgery kits contain a combination of legend drugs such as Lidocaine

and non-legend supplies used during surgical procedures.

75 required to compensate Liljeb e rg Enterprises for certain bulk

drugs, such as contrast media and surgery kits, which Lifemark

purchased directly from drug who lesalers and which were sent to

ancillary departments of the hospital for administration by doctors

or nurses. 108 According to Lifemark, the district court held that

compensation was due Liljeberg Enterprises because section 2.6(a)’s

excluding compensation to Liljeberg Enterprises for these drugs was

illegal and was superceded by the Tenet policy manual. The

argument is that the district court included this unspecified

compensation in its $5 million award to Liljeberg Enterprises.

The district court’s actual findings and conclusions on this

matter are somewhat different, however, and hinge on the following

propositions. Liljeberg Enterprises was the exclusive, licensed

hospital pharmacy for the hospital, and the parties intended that

Liljeberg Enterprises would have the exclusive right to furnish all

drugs to all departments at the hospital except for specific

exclusions set forth in section 2.6. Louisiana and federal law do

not require that kits which include legend drugs be purchased from

Lilje berg Enterprises, but the law does require that Liljeberg

Enterprises oversee the storage and dispensing of these items.

However, Tenet policy requires that the hospital pharmacy procure,

store, distribute, and control all pharmaceuticals used within the109 The district court found that Tenet’s Pharmacy Policy & Procedure

Manual gave Lilj eberg Enterprises, as the hospital’s pharmacy department, the

responsibility to store, control, and distribute all drugs, including non-legend

drugs, for use in ancillary departments, resting on the manual’s general

statement that the general purpose of the pharmacy department is the procurement,

distribution, and control of all pharmaceuticals used within the hospital.

110 There is no dispute that only Liljeberg Enterprises possessed the

relevant hospital pharmacy permit for the hospital required under Louisiana law.

76 hospital, 109 and the pharmacy agreement requires that all drugs to

be administer ed to patients at the hospital be purchased from

Liljeberg Enterprises, other than those drugs for which a specific

exclusion exists under the pharmacy agreement, e .g.

, pursuant to

section 2.6. Thus, Lifemark should have involved Liljeberg

Enterprises in procuring, storing, and dispensing any drugs or kits

which required the intervention of a lice nsed pharmacist under

applicable law. Lifemark failed to do so in ordering legend drugs

or kits containing legend drugs from sources other than Liljeberg

Enterprises, including by use of Liljeberg Enterprises’s pharmacy

permit without Liljeberg Enterprises’s permission, 110 and by storing

and dispens ing legend drugs through the hospital’s Materials

Management Department, bypassing the hospital pharmacy, in

contravention of the pharmacy agreement.

Thus, the district court did not conclude that section 2.6(a)

is illegal per se

. Nor did it conclude that Liljeberg Enterprises

was required by state or federal law to purchase all drugs or kits

containing legend drugs for use in the ancillary departments of the

hospital in preparation for, during, or immediately follow i ng

departmental patient related procedures. Rather, it decided that,111 Lifemark concedes that an inspector for the Louisiana Department of

Health and Hospitals testified tha t he concluded that legend drugs were being

stored and d ispensed from the Materials Management Department without the

supervision of a pharmacist, but notes that he also admitted that his normal job

responsibility was to inspect hospitals for federal reimbursements and that he

would defer to Louisiana Board of Pharmacy on the interpretation and enforcement

of Louisiana pharmacy laws.

77 where state and federal law requires Li ljeberg Enterprises’s

involvement with legend drugs used by the ancillary departments of

the hospital, section 2.6(a) must not be read to bar Liljeberg

Enterprises from entitlement to compensation under the pharmacy

agreement.

Lifemark argues, however, that where section 2.6(a) states

that Liljeberg Enterprises will neither “pr ovide” nor be

compensated for d rugs used in ancillary departments, including

l egend drugs, but does not prohibit Liljeberg Enterprises fro m

providing oversight or other services which the court has found to

be necessary, secti on 2.6(a) is entirely consistent with the

distric t court’s finding that Lifemark could lawfully purchase

legend drugs. Lifemark also argues that there is no evidence of

illegality; that a Louisiana Board of Pharmacy inspector found no

violations where the drugs were distributed on doctors’ orders and

the administration of the drugs was ultimately reviewed by the

hospital pharmacy. 111 Lifemark contends that the district court

erred in discounting this evidence (along with testimony that, even

if it is against the letter of the law, many hospit als store and

dispense pharmaceuticals out of ancillary departments), because, in

the view of the district court, the Board’s non-action against112 Witchen’s suit stemmed from Lifemark’s request, pursuant to its rights

under the pharmacy agreement, that Liljeberg Enterprises remove Wit c hen as

pharmacy director.

113 T he standard for deciding whether the district court erred in denying

a motion to reopen is well-settled:

We review for abuse of discretion a district court’s ruling on

a party’s motion to reopen its case for the presentation of

additional evidence. The court’s decision “will not be disturbed in

the absence of a showing t hat it has worked an injustice in the

cause.” Among the factors the trial court should examine in

deciding wheth er to allow a reopening are the importance and

probative value of the evidence, the reason for the moving party’s

failure to introduce the evidence earlier, and th e possibility of

prejudice to the non-moving party.

Garcia v. Woman’s Hosp. of Tex.

, 97 F.3d 810, 814 (5 th Cir. 1996) (citations

omitted; quoting Gas Ridge, Inc. v. Suburban Agric. Props., Inc.

, 150 F.2d 363,

366 (5th Cir. 1945)).

78 Lifemark appeared to be the result of the Board’s desire to stay

out of a contract dispute between two private entities and “because

the exercise of discretion by the Board of Pharmacy cannot abrogate

black letter law.”

Finally, Lifemark argues that the dis trict court erred in

refusing to reopen the record to al low evidence from a trial in

another lawsuit filed by Liljeberg Enterprises’s former pha rmacy

director James Witchen against Lifemark Hospitals of Louis iana,

Inc., a Lifemark employee, Tenet, and Liljeberg Enterprises. 1 12

This evidence show ed that the Louisiana Board of Pharmacy found

that Lifemark’s handling of legend drugs was not a violation of

pharmac y laws. Lifemark argues that this refusal works an

injustice to it and constitutes an abuse of discretion. 113

We conclude that the district court erred in concluding that

section 2.6 (a) denies Liljeberg Enterprises compensation for its114 Section 2.6(a) provides that Liljeberg Enterprises “shall not p rovide,

nor be entitled to any compensation

, for

... (a) all drugs and supplies utilized

by the ancillary departments of the Hospital in pr eparation for, during, or

immediately followin g departmental patient related procedures, except those

patient identifiable charges in which the cost of the drug is not included in a

fee or charge for that procedure.” (emphasis added).

79 required involvement in the procur ing or purchasing and

distribution, as opposed to the dispensing, of the legend drugs or

kits. However, the district court did not err insofar as it

concluded that Liljeberg Enterprises should have been involved with

the storage of the legend drugs or kits at issue and compensated

accordingly under the pharmacy agreement.

The district court’s conclusion turn s on whether applicable

state or federal law required Liljebe rg Enterprises to purchase,

procure, store, distribute, or dispense legend drugs or kits

containing legend drugs, which would prohibit a reading of section

2.6(a) to exclude compensation to Liljeberg Ent erprises for

rendering these services to “provide” such drugs for use by the

ancillary departments of the hospital. 114

Turning first to federal law, neither the district court nor

the Liljebergs point to any relevant statutes, and we have found

none, which prohibit the hospital’s practice of the Materials

Management Department’s ordering, storing, and distributing legend

drugs, which are not “controlled substances,” to doctors or nurses

in the ancillary departments of the hospital t o administer to115 S ee 21 U.S.C. § 35 3 (b)(1)(ii) (requiring that certain drugs be

dispensed only “upon a written prescription of a practitioner licensed by law to

administer such drug”); id. § 822 (governing persons required to register with

the United States Attorney General in order to dispense any “controlled

substance”).

116 See Salve Regina Coll. v. Russell , 499 U.S. 225, 231 (1991).

80 patients on doctors’ orders. 115 Furthermore, although the district

court found that American Medical and Tenet used Liljeberg

Enterprises’s pharmacy permit without Liljeberg Enterprises’s

permission to order drugs, the court made no further findings that

these drugs were controlled substances for which 21 U.S.C. § 822

requires registration with the United States Attorney General, and

the record does not support a finding that Liljeberg Enterprises’s

“circumventio n claim” involves any legend drugs which are

controlled substances.

This issue presents a classic Erie question as to what state

law requires, whic h we review d e novo

. 116 The competing views of

officials from the Louisi ana Board of Pharmacy and the Louisiana

Departmen t of Health and Hospitals on the question of what

Louisiana law required as to the procurement or purchasing,

storage, and dispensing or distributing of legend drugs at the

hospital are of no moment in this analysis an d entitled to no

deference. Although the regulations upon which the district court

relied were promulgated by the Board of Pharmacy of the Louisiana

Department of Health and Hospitals, the views upon which the

parties rely are not the sort of final decision of a state agency117 C f. Matter of Recovery I, Inc.

, 635 So.2d 690, 697 (La. App. 1 Cir.),

writ denied

, 639 So.2d 1169 (La. 1994); cf. also Laidlaw Envtl. Servs., Inc. v.

La. Pub. Serv. Comm’n

, 752 So.2d 748, 751 (La. 1999) (noting that the Louisiana

Public Service Commission is entitled to deference in its interpretations of its

own rules and regulations but not in its interpretation of statutes and judicial

decisions).

118 S ee L A

. A DMIN

. C ODE tit. 46, pt. LIII, § 2501; id. § 2503; id. § 2507(B);

id. § 2513; id. § 2519(A); id. § 2523(A).

81 embodying the agency’s interpretation of its own regulations to

which Louisiana courts will give deference. 117 For this reason, the

district co urt was entirely within its discretion in denying

Lifemark’s motion to supplement the record with evidence that the

Louisiana Board of Pharmacy rejected Liljeberg Enterprises’s

complaints to the Board that Lifemark’s hospital departments were

dispensing drugs in violation of state pharmacy laws and that the

Board rejected the complaints because it failed to find any

violation of the pharmacy laws.

In concluding that “[t]he law only requires that [Liljeberg

Enterprises] oversee the storage and dispensin g of [items

conta ining legend drugs],” the district court discussed only

regulations promulgated by the Board of Pharmacy of the Louisiana

Department of Health a nd Hospitals which govern “hospital

pharmacies. ” 118 These regulations, however, do not specifically

require the hospital pharmacy or pharmacist-in -charge to be

involved in the purchasing, procurement, or distribution of legend

drugs to doctors or nurses in the ancillary departments of the119 S ee id. § 2501 (“A hospital pharmacy is a pharmacy department located

in a hospital facility licensed under R.S. 40:2000 et seq., [1986] by the

Louisiana Department of Health and Hospitals. Hospital pharmacy represents an

inpatient primary care treatment modality pharmacy.”); id. § 2503(A) (“A hospital

pharmacy permit shall be required to operate a pharmac y for possession,

dispensing, and delivering legend prescription orders to patients in a

hospital.”); id. § 2511(A) (“Hospital dispensing is the issuance of one or more

unit doses of medicat ion in a suitable container, by a pharmacist, properly

labeled for subsequent administration ....”); id. § 2513 (“Prescription legend

drugs may be dispensed from the hospital pharmacy only upon orders of a licensed

medical practitioner.”); id. § 2517(A) (“All drugs dispensed by a hospital

pharmacy, intended for use within the facility, shall be dispensed in appropriate

containers and adequately labeled as to identify patient name, room number, trade

mark, chemical or generic name, and strength of the medication.”); id. § 2519(A)

(“Drugs may be dispensed and administered only upon the prescription orders of

licensed authorized prescribers.”); id. § 2523(A) (“The hospital pharmacy shall

be under the direct control and supervision of a pharmacy direc tor who is a

Louisiana licensed pharmacist, serves as pharmacist-in-charge and is competent

in the specializ e d functions of a hospital pharmacy located in a primary care

treatment modality.”); id. § 2529(A)(1) (“The annual hospital pharmacy inspection

review shall verify the following. 1. Dispensed Drugs. Prescription orders are

dispensed exclusively by licensed ph armacists to inpatients.”); a ccord id. §

3501(A) (“Legend Drugs. A legend drug is a medication which must only be

dispensed by a pharmacist on the order of a licensed practitioner and shall bear

the following notation on the label of a commercial container: ‘caution: federal

law prohibits dispensing without a prescription’ (Ref. R.S. 40:1237, et seq.

[1982] and U.S.C. 21:353(b) [1987]).”); id. § 3501(A)(1) (“Dispensing. Legend

drugs sh a ll be dispensed only by a licensed Louisiana pharmacist.”); id. §

3501(A)(3) (“Po ssession. Legend drugs shall be procured and possessed by a

pharmacy permittee for legitimate dispensing by a pharmacist in the course of the

practice of pharmacy, unless otherwise provided by law.”).

120 It is important to distinguish between “dispensing,” “administering,”

“delivering,” and “distributing” drugs. Under Louisiana law, “‘[a]dminister’ or

‘administration’ means the direct application of a drug to the body of a patient

or research subject by injec tion, inhalation, ingestion, or any other means.”

82 hospital to administer to patients on doctors’ orders. 119 Our

review of Louisiana law convinces us that the Materials Management

Department’s “distr ibuting” legend drugs to doctors or nurses in

the ancillary departments of the hospital to “administer” to

patients on doctors’ orders constituted “distribution” and was not

“dispensing,” as the district court described it. Louisiana law in

effect at the relevant time did not require that this work be

supervised or done by a pharmacist. 120 Neither the district courtL A

. R EV

. S TAT

. § 37:1164(1); accord id. § 40:961(2). “‘Deliver’ or ‘delivery’

means the actual, constructive, or attempted transfer of a drug or device from

one person to another, whether or not for a consideration.” Id. § 37:1164(8);

accord id. § 40:961(10). On the other hand, “‘[d]ispense’ or ‘dispensing’ means

the interpretation, evaluation, and implementation of a prescription drug order,

including the preparation and delivery of a drug or devic e to a patient or

patient's agent in a suitable container appropriately labeled for subsequent

administration to, or use by, a patient ,” such that “‘[d]ispense’ necessarily

includ es a transfer of possession of a drug or device to the patient or the

patient's agent.” I d. § 37:1164(10); a ccord id. § 40:961(13). Finally,

“‘[d]istribute’ or ‘distribution’ means the delivery of a drug or device other

than by administering or dispensing.” I d. § 37:1164(11); accord id. §

40:961(14).

121 L A

. R EV

. S TAT

. § 37:1224(F) (repealed by 2000 La. Acts 83). Section

37:1224(F) was repealed the year after its enactment. See 2000 La. Acts 83.

83 nor Liljeberg Enterprises point us to any other c ontrolling

Louisiana law then in force that would prohibit the role of the

Materials Managemen t Department in ordering and distributing the

drugs and kits at issue, and we have located no Louisiana case law

or statute in effect at the relevant time which would do so.

The Louis iana legislature later changed the law to require

just what the d istrict court found to be the law at the time of

Lifemark’s alleged “circumvention” pursuant to the various hospital

pharmacy regulations. The Louisiana legislature in 1999, after the

events which allegedly gave rise to Liljeberg Enterprises’s

“circumvention claim,” enacted Louisiana Revised Statutes §

37:1224(F). This section provided that “[a]ll procurement,

delivery, dispensing, and distribution of federal l egend and

controlled drugs that are purchased for and administered to

patients inside a hospital licensed under R. S. 40:2100, et seq.

shall be procured, delivered, dispensed, and distributed under the

direction of the pharmacist-in- charge of that hospital.” 1 21 The122 See 1999 La. Acts 767.

123 S ee id. ; see generally Jacobs v. City of Bunkie

, 737 So.2d 14, 20 (La.

1999).

124 L A

. A DMIN

. C ODE tit. 46, pt. LIII, § 3501(A)(4).

125 The district court also found that Liljeberg Enterprises “and its

pharmacy director have recently been given the ability to supervise and oversee

the storage of the kits containing legend drugs.”

84 legislature explicitly noted in Act 767 , in which it enacted

section 37:1224(F), that section “37:1224 (F) is all new law.” 1 22

Yet, because the Legislature did not expressly provide for this new

substantive law to apply retroactively, section 37:1224(F) is not

applicable to this case. 123

Regulations from the Board of Pharmacy Louisiana Department of

Health in force at the relevant time, however, provided that

“[l]egend drugs shall be stored in a licensed pharmacy under the

immediate control and r esponsibility of a pharmacist.” 1 24 On

appeal, Lifemark does not challenge the district court’s finding

that “Materials Management is merely a department of the hospital,

is not a phar macy and is not under the control or direction of a

licensed pharmacist.” 125 Lifemark instead points us to the

test imony of the Louisiana Board of Pharmacy inspector that a

sanitary pe rmit issued by the Louisiana Department of Health and

Hospitals to Lifemark gave the hospital the authority to hold and

stor e prescription drugs outside of the hospital pharmacy. But

Lifemark points us to no controlling Louisiana law which codifies

or confirms this authority, and our own research has located none.126 See Nat’l Union

, 915 F.2d at 989 (“Under Louisiana law, a contract is

the law between the parties, and is read for its plain meaning.” (citation

omitted)).

85 On the basis of our review of Louisiana law in fo rce at the

time of the events giving rise to the Lil jebergs’ “circumvention

claim,” we believe the Supreme Court of Louisiana would conclude

that Lifemar k’s contested practice of ordering and distributing

certain legend drugs and k its containing legend drugs did not

violate the Louisiana pharmacy laws. This conclusion is bolstered

by the legislature’s later enactment of section 37:1224(F) as “new

law.” At the same tine, we are persuaded that the Supreme Court of

Louisiana would conclude that governing state regulations required

the involvement of the hospital pharmacy in the storage of legend

drugs and kits containing legend drugs.

Accor dingly, without any basis in state or federal

requirements, the district court erred as a matter of law in

expanding the scope of the pharmacy agreement through Tenet’s

policy manual to provide for a requirement that Liljeberg

Enterprises be involved in the purchasing, procurement, or

distribution of the legend drugs or kits containing legend drugs at

issue. 126 Indeed, the law between the parties–section 2.6(a) of the

pharmacy agreement–provides to the contrary.

The district court thus erred in awarding $5 million in

damages on the basis, in part, that Lifemark “circumvented”

Liljeberg Enterprises’s hospital pharmacy and thereby denied86

compensation to Liljeberg Enterprises. Lifemark did not violate

federal or Louisiana law by purchasing certain bulk drugs, such as

contrast media and surgery kits, directly from drug wholesalers and

distributing them to ancill ary departments of the hospital for

administration by doctors and nurses, but the hospital’s storage of

these drugs and kits outside of the hospital pharmacy contravened

governing state regulations.

iii.

Lifemark arg ues that, notwithstanding its challenges to the

district court’s interpretations of sections 4.1(a) and 2.6(a) of

the pharmacy agreement in favor of Liljeberg Enterprises’s

“circumventio n claim,” the $5 million award cannot stand because

Liljeberg Enterprises failed to adequately prove damages awarded in

reliance on a procedurally flawed audit of pa tient charts.

Moreover, Lifemark argues that the $5 million award for Liljeberg

Enterprises’s “circumvention claim” is duplicative, in part, of the

$700,000 award for lost profits on contrast media, which we address

below , and the $57,085 award for insulin and nitroglycerin

underpayments, which we affirm.

a.

Lifemark argues that, rather than even attempting to prove

actual, itemized damages, Liljeberg Enterprises performed an audit

of a small percentage of patient charts fro m which it asked a

mathematics professor to extrapolate a damage figure. The district

court rejected the professor’s figure, finding “that the [Liljeberg87

Enterprises] methodology to price the c alculation of damages

pursuant to its chart audit to be inflated.” However, despite

Lifemark’s assertion that the district court found the chart audit

to be unreli able, the only flaw the district court found in the

audit was its “charging the full price of the drug plus the fee for

each administr ation of a drug when, in fact, a multiple

administration of a drug would have carried no separate acquisition

cost,” while the district court also found that Lifemark’s claim

“that 40% of all of the patients receive no drugs is also

...

without foundation.” On the basis of these findings, the district

court found that “the correct figure is somewhere between [Lifemark

expert] Dr. Haworth’s $3,000,000 and a significant discount off the

[Liljeberg Enterprises] expert’s figure,” which was at least $12.8

million, and accordingly found “that $5,000,000 is the proper

figure.”

The district court was presented with conflict ing testimony

and evidence as to the validity of the chart audit and the accuracy

of its methodology. On appeal, Lifemark argues that the district

court should have credited the testimony of its experts over the

testimony and evidence offered by Liljeberg Enterprises in support

of the audit. On the record before us, the district court was

entitled to weigh the conflicting testimony and c redit Liljeberg

Enterprises’s chart audit a s the basis for a reasonably accurate

estimate of the amount of damages, with modifications, and, in so

doing, the district court did not base its award on mere127 S ee Theriot v. United States

, 245 F.3d 388, 395 (5th Cir. 1998) (noting

that, when the district court's finding is based on its decision to credit the

testimony of one witness over that of another, that finding, if not internally

inconsistent, can virtually never be clear error); accord Justiss Oil Co., Inc.

v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996).

88 speculation or conjecture. 127 It is well-settled that the district

court is only required to determine the extent of the damages as a

matter of just and reasonable inference and that the result need

only be approximate. The basis for the district court’s award,

while it is decidedly not “a perfect measure of damages,”

nevertheless meets these criteria on the record before us.

b.

Additionally, according to Lifemark, the $5 million award

overlaps with two more specific damage awards for non-payments for

contrast media and underpayments for insulin and nitroglycerin.

This is because Liljeberg Enterprises’s pharmacy director admitted

that both these claims were a part o f Liljeberg Enterprises’s

“circumvention claim

. ” Additionally, the district court’s $5

million award was based on the chart audit; t hat Liljeberg

Enterprises’s expert accepted the chart in calculating damages for

claimed underpayments or non-payments for contrast media, insulin,

and nitroglycerin. That is, Liljeberg Enterprises did not back the

overlapping charges out of the audit.

It is unclear whether the district court’s $5 million figure

took account of non-payments for contrast media or underpayments

for insulin and nitroglycerin. However, because the district court89

made specific awards with separate stated reasons as to each of

these claimed underpayments, we must conc lude that they were not

included in the $5 million award, in the absence of more compelling

evidence from Lifemark of duplicative awards.

iv.

We conclude that the district court erred, in part, in

awarding $5 million on Liljeberg Enterprises’s “circumvention

claim” on the basis of its interpretation of section 2.6(a) of the

pharmacy agreement. We cannot on the record before us quantify how

much of the $5 million award was for Liljeberg Enterprises’s

“circumvention claim” under section 2.6(a), which we reverse in

part, as distinguished from its claim under section 4.1(a), which

we affirm. We therefore vacate the district court’s $5 million

award to Liljeberg Enterprises and remand to the district court for

a redetermination of damages for Liljeberg Enterprises’s

“circumvention claim.”

B.

Lifemark also argues that, because contrast med ia was not

separately identifiable on patients’ bills, Liljeberg Enterprises

is not entitled to the $700,000 award for lost profits on contrast

media under section 2.6(a) of the pharmacy agreeme nt. Lifemark

argues that the district court erred in relying upon an exception

in section 2.6(a), which excludes “patient identifiable charges in

which the cost of the drug is

... included in a fee or a charge for

that procedure,” to justify a $700,000 award.90

The district court found that Liljeberg Enterprises originally

supplied contrast media to the hospital, which was included as a

separate item on the bill of a patient, but that American Medical

later decided to include contrast media in what it urges are

unidentifiable costs in a single procedure. The district court

found that American Medical began including the contrast media cost

within a single procedure in order to avoid having to purchase this

i tem from Liljeberg Enterprises. The contention is that the

pharmacy agreement allowed American Medical to purchase items and

legend drugs from other sources “where the cost for the drug is not

identifiable from the cost of the procedure.” However, the

district court concluded that, from American Medical’s master price

list or “charge master,” it can identify the cost of contrast media

by c omparing the listed costs for procedures with and without

contrast media and so, “for purposes of the [pharmacy agreement],

it is an identifiable cost.”

Lifemark argues that American Medical stopped billing contrast

media as a separate item to each patient and began including them

in bills for radiology procedures. Lifemark argues that it

negotiated a favorable contract with a new vendor, which allowed it

to bill for contrast media in this fashion, a practice that saved

patients up to $400 per procedure. The argument continues that,

pursuant to section 2.6(a) of the pharmacy agreement, Ame rican

Medical stopped paying Liljeberg Enterprises for cont rast media

because, under its new practice, these drugs were “ patient91

identifiable charges in which the cost of the drug is

... included

in a fee or charge for that procedure.”

Section 2.6(a) provides that Liljeberg Enterprises “shall not

provide, nor be entitled to any compensation, for

... (a) all drugs

and supplies utilized by the ancillary departments of the Hospital

[including, but not limited to, radiology] in prepara tion for,

during, or immediately following departmental patient related

procedures,” including “those patient identifiable charges in which

the cost of the drug is ... included in a fee or charge for that

procedure.”

The operation of this provision does not turn, as the district

court concluded, on whether the charge for the drug can be

identified, i.e. , is “identifiable,” for each patient, but rather

on whether such an “identifiable” charge is included in the fee or

charge for the departmental patient related procedure in which the

drug is used. The district court made no finding that the charges

for the cost of contract media were not included in the charges for

radiation proce dures, but simply concluded that American Medical

contravened the terms and spirit of the pharmacy agreement.

Sect ion 2.6(a) is clear, and American Medical operated well

within its terms. The district court erred in its implicit

conclusion that American Medical breached the pharmacy agreement in

bad faith. We reverse the district court’s award of $700,000 to

L iljeberg Enterprises as lost profits for Lifemark’s failur e to92

purchase contrast media through the date of trial from Liljeberg

Enterprises as required under the pharmacy agreement.

C.

Lifemark argues that the district court erred in awarding

Liljeberg Enterprises $2,023,571, which represents costs incurred

in excess of limi ts set by their contract. The argument is that

the award is based on an erroneous conclusion that Lifemark

improperly limited reimbursement for acquired drugs to prices set

forth in Lifema rk’s prime vendor contracts; that this finding is

erroneous because the limit is found in section 2.4 of the pharmacy

agreement. Section 2.4 provides:

OPERATOR [Liljeberg Enterprises, Inc.] agrees to obtain

from LIFEMARK Pharmacy all of Hospital's inpatient

(including emergency room patients) requirements for

pharmaceutical services, including, without limitation,

drugs, medicines, and intravenous solutions, to the

extent LIFEMARK Pharmacy can provide same. LIFEMARK

Pharm acy shall supply these items at cost. Nothing in

this Agreement shall prevent OPERATOR [Liljeberg

Enterprises, Inc.] from acquiring those items from

another supplier if i) the cost for those items is less

than what LIFEMARK Pharmacy would charge and ii) the

quality of those items is equal to or superior to those

supplied by LIFEMARK Pharmacy.

The district court concluded that, under section 2.4,

Liljeberg Enterprises agreed t o obtain all hospital inpatient

requirements from Lifemark Pharmacy, which was obligated to supply

the items at cost; that, Liljeberg Enterprises could purchase such

required items from a vendor other than Lifemark Pharmacy only if

Lifemark Pharmacy could not supply an item or if the item was less

expensive elsewhere and the quality was equal or superior to that93

supplied by Lifemark Pharmacy. The district court also found,

however, that “Lifemark Pharmacy” did not exist at any time after

the hospital opened and that Liljeberg Enterprises never purchased

any drugs from “Lifemark Ph armacy” but instead purchased drugs

under buying contracts from Bergan Brun swig and from Spark Drug.

Finally, the dist rict court found that Liljeberg Enterprises was

paying six percent less for drugs than if it would have under

purchasing contracts between drug manufacturers and wholesalers and

American Medical and later Tenet.

The district court found that, where Liljeberg Enterprises’s

actual acquisition costs for drugs which it did not obtain through

Lifemark’s prime vendor contracts was greater than the amount shown

for those drugs on the prime vendor contracts, Lifemark had

deducted the difference between t he amounts from its payments to

Liljeberg Enter prises under the pharmacy agreement. At trial,

Lifemark’s expert witness Dr. Albert Richard applied the same

approach to argue that Liljeberg Enterprises had wrongfully billed

in excess of $600,000 based on the difference b etween Liljeberg

Enterprises’s actual acquis ition costs and the amounts shown on

Lifemark’s prime vendor contracts. The district court rejected Dr.

Richards’s argument and found that Lifemark’s contract

administrator had wrongfully deducted amounts from Liljeberg

Enterprises’s bills on the basis of this approach. The district

court found that Lifemark’s approach failed to compare the National128 The district court found that “[a] coding system, implemented by NDC

whereby each drug is given a code number, allows the identification of the drug

manufacturer, its strengths and its quantity and, thus, is a means of identifying

the cost of the drug pursuant to purchasing contracts.”

94 Drug Code (“NDC”) number 128 in Lifemark’s prime vendor contract to

the NDC number of the drugs actually supplied by Liljeberg

Enterprises. Instead, payments were based on the lowest price

possible for the type of drug supplied without regard to

differences in generic versus name-brand drugs and in s trength,

quantity, bioequivalency, and bioavailability.

Lifemark first argues that American Medical and later Tenet

are the successors to “Lifemark Pharmac y” for purposes of the

pharmacy agreement. According to Lifemark, because American

Medical purchased Lifemark in 1984, before the pharmacy opened,

pricing was established by a prime vendor contract negotiated by

American Medical on behalf of all American Medical-owned hospitals.

This provided sources in bulk with favorable pricing, and Tenet

later followed the same protocol.

Lifemark also argues that it was entitled under section 2.4 to

pay Liljeberg Enterprises only the price for g eneric drugs,

otherwise equivalent with regard to strength, bioequivalency, and

bioavaila bility. It points out that Liljeberg Enterprises could

have purchased its drugs at the lower prices under the prime vendor

contracts by becoming a member of Tenet’s g roup purchasing

organization or by purchasing generic or other drugs from outside

vendors at the lower prices; t hat Liljeberg Enterprises instead95

chose to purchase and bill Lifemark for the more expensive nameb rand drugs, thereby expanding its profits under the cost-plus

contract. Liljeberg Enterprises responds that nothing in the

pharmacy agreement authoriz ed American Medical or Tenet to pay

Liljeberg Enterprises for generic drugs when Liljeberg Enterprises

was dispensing physician-requested name-brand drugs and that

Lifemark never told Liljeberg Enterprises to dispense only

generics.

We conclude that the district court did not err in its

interpretation of section 2.4. Like the parties, whose past

practice under the pharmacy agreement includes Liljeberg

Enterprises’s purchasing drugs under Lifemark’s prime vendor

contracts negotiated by American Medical, we substitute American

Medical/Tenet for “LIFEMARK Pharmacy,” so that the comparison for

purposes of the phrase “less than what LIFEMARK Pharmacy would

charge” looks to Lifemark’s prime vendor contracts. However, the

provision that Liljeberg Enterprises could obtain drugs from other

suppliers so long as “the cost for those items is less than what

LIFEM ARK Pharmacy would charge” does not in itself contemplate

that, while American Medical/Tenet would charge one price for

requested name-brand drugs under the prime vendor contracts,

Lifemark can pay Liljeberg Ent erprises only the cost of generic

equivalents under the prime vendor contracts.

On appeal, Lifemark does not challenge the finding that

Liljeberg Enterprises paid the same or less for name-brand drugs129 Lifemark does challenge the specific finding that Liljeberg Enterprises

is paying six percent less than Tenet’s bulk prices on the basis that the

supporting testimony for this finding referred only to the price Liljeberg

Enterprises was paying at the time of tri al. However, Lifemark points to no

evidence that would show clear error in the district court’s broader finding that

the prices for name-brand drugs under Lifemark’s prime vendor contracts are not

lower than the prices Liljeberg Enterprises was paying for the same name-brand

drugs.

96 than if it would have paid for the same n ame-brand drugs under

Lifemark’s prime vendor contracts, which Lifemark simply describes

as providing “favorable bulk pr ices.” 1 29 Instead, Lifemark

com plains that Liljeberg Enterprises should have been purchasing

only generic drugs or purchasing in bulk under its prime vendor

contracts. Nothing in section 2.4 entitles Lifemark to insist on

such purchases by Liljeberg Enterprises in the absence of the

availability from the prime vendor contract s of lower prices for

t he same drugs. It is no answer that the pharmacy agreement

requires the purchase of the lowest priced drugs and makes no

exceptions for name-brand drugs where the term “items” in section

2.4 reasonabl y encompasses, in the context of the pharmacy

agreement, both name-brand and generic drugs, depending o n the

order which Liljeberg Enterprises was called upon to fill.

We find no error in the district court’s interpretation of

section 2.4 or its findings supporting its award of $2,023,571 for

L ifemark’s wrongful disallowance of requested payment due to

pricing differences.

D.97

Lifemark argues that the district court misread t he minimum

fee increase provision of the pharmacy agreement, section 4.1(c).

This led to its finding that Lifemark should have increased the

minimum fee in 1995 and its award of $150,275.60. Section 4.1(c)

of the pharmacy agreement provides:

LIFEMARK agrees that OPERATOR's [Liljeberg Enterprises,

Inc.’s] minimum fee expressed in Exhibit B shall be

increased annually by the lesser of (i) the percentage

increase in the Department's revenue per patient day and

( i i) the percentage increase in the Hospital Market

Bas k et Index, as published by the American Hospital

Association, or appropriate successor index (the

"Index"); provided however, that in any year in which

there is either no change or a percentage d ecrease

pursuant to subsection (i) or (ii) above, the minimum fee

shall not be changed and prov ided, further, that the

calculations in any year pursuant to subsection (i) and

(ii) above shall be adjusted for any decrease, if any, in

the immediately preceding years. The percentage

calculate d pursuant to subsection (i) above shall be a

fraction, the numerator of which is the revenue per

patient day for the year just ended and the denominator

of which is the revenue per patient day for the prior

year. The percentage calculated pursuant to subsection

(ii) above shall be a fraction, the numerator of which is

the most recently published Index and the denominator of

wh ich is the last published Index immediately prior to

the beginning of the most recently concluded 12 -month

period of this subsection Agreement. The first

adjustment shall be made as of the first day of the

thirteenth (13th) month of the term of this Agreement and

shall be based solely upon subsection (ii) abov e, and

subsequent adjustments shall be made on each an n ual

anniversary date thereafter.

The district court found that Liljeberg Enterprises receives

33% of its revenue from minimum fee items under the pharmacy

agreement and that, for the period September 1, 1995 through May

31, 1997, Liljeberg Enterprises received $2,447,485.35 from minimum

fee revenue; that this amount was paid by Lifemark based upon98

Lifemark’s mistaken belief that no increase in the minimum fee was

due under the terms of the pharmacy agreement. The district court

concluded that under the pharmacy agreement a 6.14% increase in the

minimum fee should have been paid to Liljeberg Enterprises, an

additional $150,275.60 for the period September 1, 1995 through May

31, 1997. These findings are based on the district court’s

conclusion that , under section 4.1(c), the term “immediately

preceding years” requires, as Liljebe rg Enterprises claims, that

the minimum fee for any year is to be calculated based upon the

immediate preceding year and not, as Lifemark claims, upon the

highest percentage for any prior year.

Lifemark’s only argument here is that reading the word “years”

as singular and not plural led the district court to erroneously

conclude that a minimum fee increase should be allowed when there

is a net increase based upon a single year’s growth on the heels of

several years of losses. Lifemark contends that this

inte rpretation flies in the face of common sense as well as the

language of the pharmacy agreement, which calls for the netting of

decreases in previous years against any increases i n the current

year’s revenu e. Lifemark asserts that it is undisputed that

pharmac y revenue per patient day declined during the years 1992-

1994 and that, although Liljeberg Enterprises inc reased its perpatient revenue in 1995, a cumulative decrease remained, such that

the minimum fee increase provision was not triggered.130 We are not persuaded by the Liljebergs’ argument that this issue is

controlled by the Louisiana state court decision’s preclusive holdings. S ee

Liljeberg Enters.

, 620 So.2d at 1340 (holding only that the trial court erred in

determining that the starting date for the esca l ation of the minimum fees was

March 1, 1984, whereas “any adjustments in the minimum fees should have begun

thirteen months from August 25, 1985, the da te St. Jude's Hospital began

operations”).

99 We conclude that the district court erred in its

interpretation of section 4.1(c). 130 The pharmacy agreement nowhere

explicitly mentions “netting” or aggregating prior years’

percentage decreases or changes. Yet every provision of the

pharmacy agreement must be interpreted in light of the contract’s

other provisions, to give each provision the meaning suggested by

the contract as a whole and to avoid neutralizing, ignoring, or

treating as mere surplusage any provision.

Section 4.1(c) calls for an increase in the minimum fee based

on the lesser of the percentage increase in the pharmacy’s revenue

per patient day and the percentage increase in the Hospital Market

Basket Index so long as (1) there was a percentage increase in both

the pharmacy’s revenue per patient day and the Hospital Market

Basket Index, i.e.

, neither of these indices experienced either “no

change or a percentage decrease,” (2) “provided, further, that the

calculations in any year pursuant to subsection (i) and (ii) above

shall be adjusted for any decrease, if any, in the immediately

preceding y ears.” The district court apparently read this

provision to provide for an increase in minimum fees by the lesser

of the percentage increase in the p harmacy’s revenue per patient100

day and the percentage increase in the Hospital Market Basket Index

that year, so long as there was no percentage decrease in the

“immediately preceding year.” Lifemark would read the provision to

prohibit a minimum fee increase until there is no net percentage

decrease when the current year’s percen tage increase is added to

the percentage de creases in some unspecified number of preceding

years.

The district court’s interpretation gives no ef fect to the

phrase “the calculations in any year pursuant to subsection (i) and

(ii) above shall be adjusted for ” and, without any explanation or

apparent finding of ambiguity, reads “immediately preceding years”

as singular and not plural. Looking to the meaning of this phrase

in section 4.1(c) suggested by the contract as a whole, we note

that the “calculations” at issue are im portant for determining

whether there is an increase, a decrease, or no change as a matter

of percentages. The most reasonable understanding of “adjusting”

the calculations “for any decrease, if any, in the immediately

preceding years” is to offset any percentage in crease in the

current year by the net “decrease, if any, in the immediately

preceding years.” The natural sense of “immediately preceding

years” conveys the last two or three years, in order to give effect

to both the phrases “immediately preceding” and “years.”

Accordingly, we conclude that the district court erred in its

interpretation of section 4.1(c). As such, we reverse the district131 HPI rates represented the prices at which Liljeberg Enterprises billed

Lifemark for pharmaceuticals, and HPI rates were located on the monthly “hospital

pharmacy billing” report, or “HPI report.”

101 court’s awar d of $150,275.60 to Liljeberg Enterprises for

Lifemark’s failure to imp lement minimum fee increases due to

Liljeberg Enterprises under the pharmacy agreement through the date

of trial.

E.

Lifemark argues that the dist rict court erred in awarding

Liljeberg Enterprises $281,906.32 based upon its finding that the

H PI reports 1 31 failed to reflect drug prices and frequencies

submitted in reports generated by Liljeberg Enterprises. Lifemark

asserts that this finding is clea rly erroneous because it is

predicated on a fun damental misunderstanding of the parties’

record- keeping and billing procedures and because it overlooks

Liljeberg Enterprises’s failure to provide documentation to support

the accuracy of the prices and quantities it submitted.

The district court found that Lifemark improperly entered cost

data into its computer, “deleted administered doses d ispensed by

Liljeberg Enterprises without any known r eason from [Liljeberg

Enterprises’s] daily and monthly disks,” and generated inaccurate

HPI report s which incorrectly reflected the drug prices and

frequencies dispensed by Lilj eberg Enterprises, and that the HPI

reports also failed to take into account floor stock. The district

court further found that there was no evidence th at the drugs at102

issue in Liljeberg Enterprises’s claim for underpayments due to

Lifemark’s incorrect pricing and quantity differences between

January 1989 and May 31, 1997 were not provided by Liljeberg

Enterprises and that the evidence in the record revealed that floor

stock items were not accounted for by Lifemark.

Reviewing these factual findings for clear error only, we find

that this damage award is based on a plausible account of the

evidence considered against the entirety of the record. Lifemark

points out that Liljebe r g Enterprises’s own pharmacy director

clearly testified that the daily disks provided by the Li ljeberg

Enterprises pharmacy to Lifemark contained only the quantity that

the pharmacy dispensed, not the doses administered by the

hospital’s doctors and nurses, such that it was not possible that

Lifemark’s computers deleted administered doses dispensed by

Liljeberg Enterprises from Liljeberg Enterprises’s daily disks. At

the same time, Lifemark does not deny that the HPI reports often

indicated that the actual cost of acquisition of a drug to be zero

and did not always account for so-called floor stock. The district

court heard conflicting testimony as to whether Lifemark adequately

paid Liljeberg Ente rprises for this floor stock and the zero

entries on the HPI reports, and it was entitled to credit Liljeberg

Enterprises’s accou nt of the evidence. Lifemark’s citation to

isolated testimony favorable to its position on each of these fact

findings does not show clear error.132 See Liljeberg Enters. Inc. v. Lifemark Hosps. of La., Inc. , 620 So.2d

1331 (La. App. 4 Cir.), writs denied , 621 So.2d 818 (La. 1993).

103 We affirm the district court’s award of $281, 906.32 to

Liljeberg Enterprises for pricing and quantity differences.

F.

Lifemark argues that district court miscalculated the actual

acquisition costs payable under the judgment of the Louisiana state

court of appeal in a prior case between Liljeberg Enterprises and

Lifemark involving the pharmacy agreement. According to Lifemark,

Liljeberg Enterprises and Lifemark stip u lated that they would

“split the diff erence” between their experts’ numbers, which was

$3,575,748 by Lifemark’s expert and $4,062,396 by Liljeberg

Enterprises’s expert. Accordingly, Lifemark contends that the

distric t court should have awarded $3,819,072, not $4,062,396,

which was the number given by Liljeberg Enterprises’s expert.

Lifemark acknowledges that it owes Liljeberg Enterprises for

actual acquisition cost for drugs for the period August 1989

through June 1993 pursuant to the preclusive state court

judgment, 132 but argues that th e district court erred in finding

that “[t]he parties have stipulated that the ac tual acquisition

cost billed by [Liljeberg E nterprises] for the period is

$4,062, 396.00.” Liljeberg Enterprises suggests that the record

indicates that Lifemark’s and Liljeberg Enterprises’s experts

originally di d split at $4,062,396, but that Lifemark’s expert

later tried to lower that figure.104

The record reflects that the parties stipulated at trial that

the amount of this award should be fixed at the mid-point between

the sum determined by Liljeberg Enterprises’s expert and the sum

determined by Lifemark’s expert. Liljeberg Enterprises’s expert’s

number was undisputedly $4,062,396. The number provided by Dr.

Richard, Lifemark’s damages expert, began at $3,990,953, and at

trial he testified that the average of these figures would be

$4,026,675. However, he then discussed several adjustments off

this number and presented a figure of $3,575,748, which Lifemark

now urges on appeal to provide an average of $3,819,072.

B ased on the parties’ stipulation, we conclude th at the

distr ict court clearly erred in not splitting the difference

between Dr. Richard’s original figure of $3,990,953 and Liljeberg

Enterprises’s figure of $4,062,396. We must reduce this award to

$4,026,675.

G.

Lifemark argues that the district court erred by not awarding

Lifemark $2,585,138 in reimbursement of Liljeberg Enterprises’s

overcharges based on Liljeberg Enterprises’s submission each month

of a lump sum bill that was inexplicably higher than and

inconsistent with the daily recor d of patient billing that

Liljeberg Enterprises provided to Lifemark. According to Lifemark,

the evidence at trial showed that this claim included (1) $184,000

overbilled to Lifemark based upon claim ed frequencies of drugs

dis pensed; (2) $1,497,078 for thousands of unexplained $3.05133 The district court found that “[a] ‘handling fee’ is a charge imposed

on a large volume patental (‘LVP’) that is handled by a pharmacist” and that

“[a]n ‘admixture’ is the result of additives being placed in an intravenous

solution,” where “[e]ach additiv e to a solution is performed as a separate

procedure.”

105 “admixture fees,” overcharges relating to I.V.s, for which Lifemark

should have been awarded $880,678, after a credit of $616,400 for

the amount awarded to Lifemark f or overcharges relating to I.V.

handling fees for piggybacks; 133 (3) $885, 644 which Liljeberg

Enterprises overcharged Lifemark for heparin flush kits, which the

district court found but refused to award on the basis that

Lifemark passed the overcharges onto patients and suffered no loss;

and (4) $634,816 in overcharges resul ting from Liljeberg

Enterprises’s submission of incorrect pricing information from

September 1, 1989 through April 30, 1993 on Liljeberg Enterprises’s

bills based upon HPI reports using pricing info rmation from

Liljeberg Enterprises’s add/change/delete forms.

i.

First, Lifemark argues that it presented uncontroverted

evidence that L iljeberg Enterprises, in adjusting the bills to

Lifemark to reflect the frequencies of drugs dispensed, only

adjusted the bills when the numbers favored Liljeberg Enterprises

and failed to adjust the bills when the numbers favored Lifemark,

which resulted in an overbilling which Dr. Richard estimated as at

least $184,000. Liljeberg Enterprises points to no evidence to the

contrary, but argues that the $184,000 Lifemark claims is based on134 Liljeberg Enterprises also implies that the denial of these damages was

appropriate because Lifemark readily billed its patient s on the basis of the

numbers in the HPI reports. This pass-through argument, addressed more fully

below, is wholly unpersuasive.

106 frequencies of drugs which th e hospital alone handled and was

responsible for and which, assuming Lifemark dispensed these drugs

in violation of the pharmacy agreement, more likely than not would

increase, not decrease, Liljeberg Enterpri s es’s damages if an

accounting were made of the compensation owed for these drugs under

the pharmacy agreement.

The district court made no relevant findings as to this claim

and did not explicitly deny it, and, as Lifemark aptly observes,

Liljeberg Enterprises’s response is a non-answer. We conclude that

the failure to awa rd this sum is clearly erroneous. The record

evidence submitted by Lifemark leaves us with the firm and definite

convict ion that the only plausible account of the evidence

considered against th e entirety of the record is that Liljeberg

Enterprises systematically overcharged Lifemark by failing to

correct drug frequency reports when the preliminary frequency shown

on Lifemark’s HPI report exceeded the frequency shown on Liljeberg

Enterprises’s pharmacy charge report. 134

The evidence is that Dr. Richard testified that $184,000 is a

reasonable estimate of the amount of the aggregate overcharges. We

are given no conflicting evidence and modify the judgment to award

Lifemark $184,000 in damages on this claim.

ii.107

Second, Lifemark contends that, when Liljeberg Enterprises’s

bills were scrutinized at trial, Liljeberg Enterprises was unable

to explain thousand s of $3.05 “admixture fees” relating to I.V.s

and argues that the district court clearly erred in failing to

award damages based on Dr. Richard’s calculation of reimbursement

of the total overcharge for these u nexplained fees, $1,497,078.

Lifemark contends that, notwithstanding the unexplained “admixture”

charges and the discrepancies in the pharmacy’s reporting of the

charges, Lifemark was billed these charges thousands of times each

month for several years and paid them. The district court made no

relevant findings as to this claim and did not explicitly deny it.

On the record before us, we cannot conclude that the district

court clearly erred in failing to award damages to Lifemark for

these overcharges. The district court awarded Lifemark $616,400

for Liljeberg E nterprises’s overcharges on I.V. piggyback fees

under the pharmacy agreement, which Liljeberg Enterprises has not

appealed, and the number offered by Dr. Richard was $1,497,078 in

gross overcharges for I.V. handling and admixture fees. Lifemark

seeks an award of $880,678 after applying a credit of $616,400 for

the amount awarded for overcharges relating to I.V. handling fees

for piggybacks.

The record before us, however, does not allow us to arrive at

a reasonably accurate estimate of the amount of damages for any

overc harges for the I.V. “admixture” fees disaggregated from Dr.

Richard’s estimate of the gross overcharges for I.V. handling and135 L A

. C IV

. C ODE art. 1995 (“Damages are measured by the loss sustained by

the obligee and the profit of which he has been deprived.”).

108 admixture fees. Accordingly, we affirm the district court’s

decision to deny Lifemark an award on this claim.

iii.

Third, Lifemark argues that the district court erred by

finding that “[Liljeberg E n terprises] has in fact overcharged

[Lifemark] for [Heparin flush kits]” but then refusing to reimburse

Lifemark for th e $885,644 overcharge due to its conclusion that

Lifemark passed the overcharge onto patients and suffered no loss.

Lifemark contends that this latter finding was based upon a

misreading of the testimony of Steven Faucheaux, Lifemark’s

administrative pharmacist. According to Lifemark, the district

court found that Faucheaux testified that Lifemark billed its

patients based upon Liljeberg Enterprises’s “overcharge price and

multiplied that cost times three,” when, in fact, Faucheaux

explicitly denied basing patient charges on Liljeberg Enterprises’s

“overcharge prices” and instead explained that “patient rates are

from a totally separate mechanism” and that Lifemark “uses the

actual wholesale price of the drug” to bill patients. Moreover,

Lifemark argues that, even if the overcharges were passed on,

Lifemark was entitled to realize the benefit of its bargain by

paying the lower costs to Liljeberg Enterprises, citing Louisiana

Civil Code article 1995. 1351 36 C f. S. Pac. Co. v. Darnell-Taenzer Lumber Co.

, 245 U.S. 531, 53 4-35

(1918); Hughes Communications Galaxy, Inc. v. United States

, 38 Fed. Cl. 578,

580-82 (1997).

109 The district court found that Lifemark, American Medical, and

Tenet bill the hospital’s patients a set markup from the price

charged by Liljeberg Enterprises for each drug, including a triple

markup for heparin flush kits. The court then concluded that,

although Liljeberg Enterprises in fact overcharged Life mark for

heparin flush kits, Liljeberg Enterprises is not liable for damages

because Lifemark suffered no loss when it charged its patients

three times the overcharge price for the loss and so actually

profited from the overcharge by passing it on to patients.

Regardless of whether Lifemark tripled the charges from

Liljeberg Enterprises in billing it s patients, we concluded that

the district court’s “pass-through” reaso ning is without merit.

Even if Lifemark recouped the overcharge payments many times over,

Liljeberg Enterprises remains liable for the amount it overcharged

Lifemark in the first instance in breach of the pharmacy

agreement. 136 Neither the district court nor Liljeberg Enterprises

has presented any authority to the contrary. Under Louisiana law,

Lifemark suffered a loss as a matter of law by overpaying Liljeberg

Enterprises based on Liljeberg Enterprises’s systematic overcharges

for heparin flush kits.

Based on the evidence presented b y Lifemark, including the

expert report of Dr. Richard, the district court clearly erred as110

a matter of law in failing to award Lifemark $885,644 for the

heparin flush kit overcharges. We modify the judgment to provide

the award to Lifemark of $885,644 in damages on this claim.

iv.

F ourth and finally, Lifemark argues that the district court

erred by failing to award Lifemark $634,816 based on overcharges

resulting from Liljeberg Enterprises’s submission of incorrect

pricing information from September 1, 1989 through April 30, 1993.

Lifemark contends that, although during that time period, Liljeberg

Enterprises’s bills were based solely upon HPI reports, which were

generated by the hospital’s computers, the pricing information, the

“HPI rate,” came directly from Liljeberg Enterprises’s

add/change/delete forms, on which, in several instances, Liljeberg

Enterprises submitted the wrong HPI rate.

We cannot find clear error in the rejection of this claim.

The evidence presented by Lifemark does not leave us with a

definite and firm conviction that the district court was mistaken

in denying the claim. The claim was based on Dr. Richard’s

extrapolation of a 60-itemsample that Lifemark wrongfully paid

$634,816 as a result of Liljeberg Enterprises’s errors in using the

HPI rate. Unlike the evidence regarding the systematic frequency

billing discrepancies which overwhelmingly ran in Liljeberg

Enterprises’s favor, the evidence here simply shows that some HPI

rates drawn from Liljeberg Enterprises’s add/change/delete forms

were incorrect and Lifemark failed to notice and correct the error137 Z eni th Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 110

(1969); accord Waffenschmidt v. MacKay, 763 F.2d 711, 718 (5th Cir. 1985); E.B.

Elliott Adver. Co. v. Metro. Dade County , 425 F.2d 1141, 1148 (5th Cir. 1970).

111 based on the information provided by Liljeberg Enterprises in the

first instance.

We therefore affirm the district court’s denial of an award to

Lifemark on this claim.

VIII. Judgment against Tenet

Lifemark argues that, because Tenet was not sued by Liljeberg

Enterprises or St. Jude, it was error for the district court to

enter judgment against it. The district court made no finding of

jurisdiction over Tenet nor any ruling formally adding Tenet as a

party to this consolidated case, and a review of the district

court’s docket sheet confirms that, to this day, Tenet is not a

party i n this case and has never been joined as a defendant or

served with process.

“ It is elementary that one is not bound by a judgment in

personam resulting from litigation in which he is not designated as

a party or to which he has not been made a party by service of

process.” 137 The Liljebergs’ reliance on case law regarding

successor liability and collateral estoppel is misplaced. The

issue is jurisdiction over a non-party to the actions , not

liability for a party already properly joined and served. We

conclude that the district court erred in entering judgment against112

Tenet, a non-party in this case, and we must vacate the judgment in

its entirety as against Tenet.

IX. Attorneys’ Fees

On their cross-appeal, the Li ljebergs argue that Liljeberg

Enterprises and St. Jude are entitled to attorneys’ fees under the

parties’ lease agreement and under Civil Code articles 1997 and

1958. On the record before us and based on our rulings on this

appeal, Liljeberg Enterprises and St. Jude have no basis for a

claim for attorneys’ fees.

First, we have reversed the district court’s judgment

overturning the judicial sal e and reinstating, i nter alia

, the

lease between St. J ude and Lifemark. Accordingly, even assuming

the claim has not been waived, as Lifemark claims, there is no

basis to award St. Jude fees under section 17.1 of the lease.

Second, Louisiana Civil Code article 1958 provides that “[t]he

party against whom rescission is granted because of fraud is liable

for damages and attorney fees.” Again, however, even assuming this

provision would apply to this case based on the district court’s

findings of fact and conclusions of law and that this claim has not

been waived, we have reversed the district court’s judgment which

overturned the judicial sale and ordere d rescission of the

hospital.

Finally, Louisiana Civil Code article 1997 provides that “[a]n

obligor in bad faith is liable for all the damages, foreseeable or138 S ee Newport Ltd. v. Sears, Roebuck & Co.

, No. Civ. A. 86-2319, 1995 WL

688799, at *4-*8 (E.D. La. Nov. 21, 1995).

139 S ee N. Alamo Water Supply Corp. v. City of San Juan

, 90 F.3d 910, 916

(5th Cir. 1996) (holding that the Court of Appe als will not consider an issue

that a party fa ils to raise in the district court absent extraordinary

circumstances, which exist only when the issue is a pure question of law and a

miscarriage of justice would result from the failure to consider it).

113 not, that are a direct consequence of his failure to perform.”

There is conflicting authority as to whether this provision

authorizes the award of attorneys’ fees for a bad faith breach of

contract. 138 However, we need not decide this unsettled issue

because the Liljebergs failed to raise article 1997 as a basis for

attorneys’ fees in the district court and have therefore waived any

claim to attorneys’ fees. 139 We are not persuaded that our refusal

to consider this claim for the first time on appeal would work a

miscarriage of justice.

X.

To summarize our holdings,(i) we reverse the district court’s

judgment in Cause No. 94-3993 overturning the judicial sale of the

hospital and reinstating various commercial instruments relating to

the financing and lease of the hospital and remand for calculation

of the amount of, and entry of judgment on, the past due deficiency

owed to Lifemark Hospitals, Inc. on the renewal promissory note and

interest due thereunder; (ii) we reverse the judgment in Cause No.

9 3 -1794 granting Liljeberg Enterprises’s motion to assume the

pharmacy contract; (iii) in Cause No. 93-4249, we affirm the

district court’s damage awards to Liljeberg Enterprises of140 As a final housekeeping matter, the Liljebergs’ motion to strike

Lifemark’s reply brief’s cross-index, which has been carried with the case, is

meritless and is denied. The inclusion of the index is not prohibited by any

rule, and it did not cause the reply brief to exceed the word count mandated by

114 $2,023,571 for Lifemark’s wrongful disallowance of requested

payment due to pricing differences and $281,906.32 for pricing and

quantity differences; (iv) we reverse the district court’s award to

Liljeberg Enterprises of $700,000 as lost profits for Lifemark’s

failure to purchase contrast media from Liljeberg Enterprises and

$150,275.60 for Lifemark’s failure to implement minimum fee

increases due to Liljeberg Enterprises under the pharmacy agreement

through the date of trial; (v) we modify the district court’s award

of $4,062,39 6 for Lifemark’s failure to reimburse Liljeberg

Enterprises its actual acquisition costs for the period August 31,

1989 through June 1, 1993 to $4,026,675; (vi) we vacate the

distric t court’s $5 million award to Liljeberg Enterprises and

remand to the district court for a redetermination of damages for

Liljeberg Enterprises’s “circumvention claim”; (vii) we conclude

that the district court clearly erred in failing to award Lifemark

$184,000 in overbillings by Liljeberg Enterprises based upon

claimed frequencies of drugs dispensed and $885,644 for the heparin

f lush kit overcharges, and we award Lifemark damages in these

amounts; (viii) we reverse the district court’s jud gment against

Tenet, a non-party to this case; and (ix) we conclude that

Lifemark’s other points of error on appeal and the Liljebergs’

points of error on their cross-appeal are without merit. 140Federal Rule of Appellate Procedure 32.

115 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART.