*Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except for the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30091

Summary Calendar

PAUL N. DEBAILLON, TRUSTEE OF THE BANKRUPT ESTATE OF 

JACK WADE DRILLING INCORPORATED

Plaintiff-Appellee-Cross-Appellant,

versus

TOTAL MINATOME CORPORATION

Defendant-Appellant-Cross-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

(96-CV-1454)

May 5, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

This appeal requires us to review the district court’s

refusal to grant attorneys’ fees to the appellant. Because the

court applied an erroneous legal standard, we vacate the order and

remand the issue for reconsideration.

BACKGROUND

Appellant Total Minatome Corporation (“Total”) entered

into a turnkey drilling contract with Jack Wade Drilling

Incorporated (“Wade”) whereby Wade agreed to drill an oil well for

Total. The underlying dispute in this litigation, which is not

part of this appeal, is whether Wade fully performed under the
 

1Soon after allegedly completing the well, Wade filed for Chapter

7 bankruptcy.

 

2The Turnkey Drilling Contract states:

5.4 Attorney Fees: In the event of a suit to enforce this

agreement or otherwise relating to the rights and obligations

of the parties under this agreement, in addition to any other

rights and remedies to which the prevailing party shall be

entitled such party shall be entitled to recover reasonable

attorneys’ fees, expenses, and court costs.

2

contract. Wade contends that it fully performed by drilling to the

contractually specified depth, but Total argues that Wade did not

drill to the specified depth and instead abandoned the well before

completing the drill. Because Total never paid Wade for its

services, Paul Debaillon, Wade’s trustee in bankruptcy,1 sued Total

for breach of contract, negligence, and fraud. Total

counterclaimed, alleging primarily that Wade breached the drilling

contract, and additionally countered for fraudulent

misrepresentation and breach of indemnity obligations.

Each of the parties’ claims and counterclaims was

rejected: The court dismissed several of the claims and the jury

rejected those that remained. In spite of a take nothing verdict,

the parties, pursuant to the drilling contract,2 requested that

they be awarded attorneys’ fees. The district court rejected their

request because it found that neither party was a “prevailing

party.” Total appeals the court’s decision.

DISCUSSION

“We review an award of attorneys' fees under an abuse of

discretion standard.” Hondo Oil and Gas Co. v. Texas Crude

Operator, Inc., 970 F.2d 1433, 1441 (5th Cir. 1992). A district
3

court abuses its discretion if its decision rests on an erroneous

view of the law. See Esmark Apparel, Inc. v. James, 10 F.3d 1156,

1163 (5th Cir. 1994).

Although Texas law does not generally permit an

award of attorneys’ fees, the district court may grant them if, as

in this case, a contract provides for such. See New Amsterdam Cas.

Co. v. Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967); City of

Garland v. Booth, 895 S.W.2d 766, 771 (Tex. App.--Dallas 1995, writ

denied). Total argues that it is the “prevailing party” and is

entitled to fees because the drilling contract provides that the

“prevailing party . . . shall be entitled to recover reasonable

attorneys’ fees.” 

Under Texas law, a “prevailing party” is one who

“successfully prosecutes the action or successfully defends against

the action on the main issue.” Weng Enter., Inc. v. Embassy World

Travel, Inc., 837 S.W.2d 217, 222-23 (Tex. App.--Houston [1st

Dist.] 1992, no writ); see also Emery Air Freight Corp. v. General

Transp. Sys., Inc., 933 S.W.2d 312, 316 (Tex. App.--Houston [14th

Dist.] 1996, no writ); Criton Corp. v. Highlands Ins. Co., 809

S.W.2d 355 (Tex App.--Houston [14th Dist.] 1991, writ denied). The

district court, however, did not apply this legal standard and

instead found that, “[t]he term ‘prevailing party’ . . . has been

defined generally by the courts as a party who prevails on the

central issue by acquiring primary relief sought.” This is a

materially different legal test than the one utilized by Texas

courts. Texas defines a “prevailing party” to include either the
4

party that successfully prosecuted an action or the party that

successfully defended against the action and does not limit

“prevailing parties” to include only the party that acquired the

primary relief it sought.

We therefore VACATE the district court’s order and REMAND

the attorneys’ fees issue for reconsideration. On remand, the

district court should determine which issue was the “main issue” at

trial and then decide which party, if any, prevailed on that issue-

-either by successfully prosecuting or successfully defending that

issue.

VACATED and REMANDED.