United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30357

____________

Keiland Construction, L.L.C., 

Plaintiff—Appellant/Cross-Appellee, 

versus

Weeks Marine, Incorporated, 

Defendant—Appellee/Cross-Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:20-CV-827

______________________________

Before Willett, Wilson, and Ramirez, Circuit Judges.

Cory T. Wilson, Circuit Judge: 

Keiland Construction sued Weeks Marine Inc. for breach of a 

construction contract. The district court held a bench trial and concluded 

that the contract was ambiguous, construed it against Keiland as the drafter,

and determined Weeks prevailed. After cross-motions for summary 

judgment on damages, the court awarded Keiland damages, but in accord 

with Weeks’s interpretation of the contract. The court also awarded Weeks 

attorneys’ fees and costs, though less than the amount Weeks requested, and 

denied Weeks’s motion for post-offer-of-judgment attorneys’ fees and costs

pursuant to Federal Rule of Civil Procedure 68(d). 

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2024

Lyle W. Cayce

Clerk

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The parties cross-appeal. Keiland contends the district court erred in 

holding the contract ambiguous, determining Weeks prevailed on the 

contract interpretation issue, and granting partial summary judgment for

Weeks as to damages. Weeks contests the district court’s attorneys’ fees 

calculation, as well as the court’s award of prejudgment interest to Keiland

and denial of post-offer attorneys’ fees. We affirm in all respects. 

I.

A.

In December 2019, Weeks Marine, Inc., as general contractor, entered

a construction subcontract (the Contract) with Keiland Construction for a 

project in Cameron Parish, Louisiana. Weeks’s vice-president David Hafner 

and Keiland’s president Keith DuRousseau signed the Contract for their 

respective companies.

In March 2020, Weeks terminated the Contract “for convenience,”

invoking Section 9 of the Contract. Traveling under Section 5, Keiland 

submitted to Weeks three pay applications, one just prior to termination and 

two afterwards, totaling more than $570,000. Keiland also submitted a 

request for $25,210.35 in demobilization costs. The parties disputed the total

compensation due. 

The parties’ dispute centered on the interplay between Sections 5 and 

9 of the Contract. Section 5, “COMPENSATION,” outlines how Weeks 

was to pay Keiland for the work to be performed:

COMPENSATION: As full consideration for the satisfactory 

performance by [Keiland] of this subcontract, [Weeks] shall 

pay to [Keiland] compensation in accordance with the prices 

set forth below.

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All pricing is firm for the duration of the project. All unit priced 

quantities listed above are estimated quantities only. Payment 

will be made in accordance with actual quantities performed by 

[Keiland] and approved by [Weeks]. Unit pricing shall remain 

the same irrespective of final quantities performed. 

[Keiland] shall provide monthly invoices for work completed 

and payment shall be made within fourteen (14) days of 

[Weeks’s] receipt of payment from the OWNER . . . .

The “LS” moniker in Table 1 means “Lump Sum”; the charged work was

to be compensated by the indicated lump sum amount. 

Section 9, “TERMINATION FOR CONVENIENCE,” allowed 

Weeks, “at its option, [to] terminate for convenience any of the Work under 

this subcontract in whole or in part at any time.” Section 9 also delineated 

post-termination compensation:

[Keiland] shall be entitled to the actual and necessary expense 

of finishing its Work through the date of termination, the actual 

and necessary expenses of withdrawing from the Project site, 

and twenty-one percent (21%) for overhead and profit 

associated with its Work through the date of termination . . . .

In Keiland’s reading, Section 5 entitled Keiland to payment on a lump-sum 

basis for work completed at the time of termination, and Section 9 provided 

for cost-plus compensation for all work performed thereafter. Weeks 

countered that upon termination, Section 9 converted the Contract’s lumpCase: 23-30357 Document: 88-1 Page: 3 Date Filed: 07/25/2024
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4

sum payment structure to a cost-plus basis for both pre- and post-termination 

work.

In January 2021, Weeks paid Keiland $200,000 “in the spirit of good 

faith after being unable to calculate Keiland[’s] actual costs.” Weeks asserts

that this payment was intended to cover all of Keiland’s costs, including 

Keiland’s claimed demobilization costs, but Keiland contests what costs 

were included. Weeks also made direct payments to some of Keiland’s 

vendors.

B.

Meanwhile, Keiland filed suit in Louisiana state court in May 2020, 

alleging that Weeks breached the Contract, defamed Keiland, and violated 

the Louisiana Unfair Trade Practices and Consumer Protection Law.1

 

Weeks removed the action to federal court in June 2020. The parties filed 

competing motions for summary judgment in May and June 2021. They 

“agree[d] that Section 5 creates a lump sum contract, but disagree[d] as to 

when Section 9 might allow termination to convert that contract to a costplus compensation structure.”

The district court denied the parties’ cross-motions for summary 

judgment, concluding that Section 9’s compensation terms were ambiguous.

It found the phrase “[Keiland] shall be entitled to the actual and necessary 

expense of finishing its Work through the date of termination” supported

Keiland’s interpretation that it was entitled to lump-sum payment for all 

work completed through termination. But the court noted that the allowance 

of 21% for overhead and profit associated with “Work through the date of 

termination” supported both parties’ interpretations. The court found 

_____________________

1 Keiland moved to dismiss its Louisiana Unfair Trade Practices Act and 

defamation claims, which the court granted.

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Weeks’s proffered parol evidence to be “self-serving and vague,” and in any 

event, “[t]he language of the [C]ontract remain[ed] too ambiguous to be 

clarified by this evidence.”

Keiland requested a trial setting and bifurcation of the issues of 

contract interpretation and resulting damages. Weeks opposed bifurcation 

of the issues as premature. After a status conference with the parties, the 

court granted Keiland’s motion in September 2021. On July 1, 2022, prior to 

the trial setting, Weeks offered a $100,000 judgment, “inclusive of all costs, 

fees, and interest,” under Federal Rule of Civil Procedure 68. Keiland did 

not accept.

In November 2022, the district court conducted a bench trial on the 

Contract’s interpretation. Considering the parties’ evidence, the court 

found that “there was no meeting of the minds with respect to [the 

Contract’s] interpretation.” The court construed the Contract against

Keiland, which had drafted the relevant language, and held that the entire

Contract converted to a “cost-plus” arrangement after termination. 

Tracking Contract Section 9, the court determined Weeks owed Keiland only 

for the “work completed through the effective date of termination [plus 21%

for overhead and profit,] and [Keiland was] not entitled to payment on the 

lump-sum basis for any work completed under the subcontract.” 

After trial, both parties moved for summary judgment on damages. 

Applying Louisiana law, the district court held that Keiland only needed to 

submit the “best evidence available” to support its costs, after which the

burden shifted to Weeks to rebut that evidence. Considering Keiland’s 

evidence, as well as an affidavit submitted by Hafner on Weeks’s behalf, the 

court made the following determinations: (1) Keiland was not entitled to 

payment for services of Keiland employees on the project (i.e., direct 

employee costs) because that expense was subsumed within the 21% markup 

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for overhead; (2) Keiland was not entitled to a 21% markup on posttermination work, and it failed to show that Weeks owed demobilization costs 

for direct employee labor; (3) Weeks was the prevailing party at trial and was

accordingly entitled to attorneys’ fees “associated with the bench trial,”

under Section 21 of the Contract; and (4) neither party was entitled to 

attorneys’ fees on the damages issue because neither prevailed on that issue.

2 

The court later amended its judgment to award Keiland prejudgment interest 

of $20,300.34, pursuant to Louisiana law.

C.

As the prevailing party at trial, Weeks sought to recover attorneys’ 

fees totaling $207,583.75, and $13,729.05 in costs, pursuant to the Contract. 

Weeks also moved under Federal Rule of Civil Procedure 68(d) for 

attorneys’ fees and costs accrued after its offer of judgment, contending that 

Weeks’s unaccepted offer of judgment for $100,000 was more favorable than 

the court’s final award to Keiland. 

The district court, in accord with its earlier opinion, awarded Weeks 

attorneys’ fees. But the court found that Weeks’s proffered evidence

“fail[ed] to distinguish between the fees and costs incurred for the one-half 

day bench trial and other fees and costs.” To remedy Weeks’s 

_____________________

2 The court’s final calculations were as follows:

Weeks is entitled to reimbursement for demobilization costs plus markup 

on those costs paid to Keiland but obligated to pay (1) $22,278.60 for 

markup on equipment and materials costs for those vendors paid directly 

by Weeks; (2) $8,946.23 for outstanding materials costs plus markup; and 

(3) $221,001.17 plus markup of $46,410.25 for labor costs of [a vendor]. 

These amounts should be adjusted against Weeks’s $200,000 payment to 

Keiland as well as any other prior payments. 

Finally, Weeks is entitled to costs [and] attorney fees associated with the 

bench trial of November 7, 2022 . . . . 

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“overinclusive” evidence, the court awarded Weeks what the court 

computed as 20% of Weeks’s “reduced liability exposure,” which totaled 

$77,316.70, as attorneys’ fees.

3

 The court also awarded $342.17 for Weeks’s

costs associated with the trial, ruling that the other costs Weeks sought were 

not allowed under 28 U.S.C. § 1920. 

Finally, the court concluded that after adjusting for the $200,000 

Weeks already paid and adding prejudgment interest, Weeks owed Keiland 

$118,936.59, which was greater than Weeks’s $100,000 offer of judgment. 

Therefore, the court determined its judgment was more favorable than 

Weeks’s unaccepted offer and denied Weeks’s Rule 68(d) motion for postoffer attorneys’ fees and costs. 

II.

The parties cross-appeal. Keiland asserts that the district court erred 

by (A) concluding the Contract was ambiguous and then construing it against 

Keiland; (B) considering Hafner’s summary judgment affidavit and denying 

Keiland its direct employee and demobilization costs; and (C) determining 

that Weeks was the prevailing party on the contract interpretation issue. 

Weeks contends that (D) the court abused its discretion by not awarding 

Weeks attorneys’ fees and costs pre-bifurcation and that the court’s

calculations were unreasonable. Weeks also challenges (E) the district 

court’s award of prejudgment interest to Keiland and its denial of attorneys’ 

fees and costs.

A.

We begin with Keiland’s contention that the district court erred in 

(1) determining the Contract to be ambiguous and (2) construing it against 

_____________________

3 The district court’s calculation of fees will be further detailed infra Part II.D. 

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Keiland after determining that there was no meeting of the minds between 

the parties when the agreement was formed. The court did not err. 

“The standard of review for a bench trial is well established: findings 

of fact are reviewed for clear error and legal issues are reviewed de novo.” 

Grilletta v. Lexington Ins. Co., 558 F.3d 359, 364 (5th Cir. 2009) (per curiam) 

(emphasis added). “[W]e review matters of contract interpretation de novo.” 

Habets v. Waste Mgmt., Inc., 363 F.3d 378, 382 (5th Cir. 2004). “When 

reviewing a district court’s factual findings, this court may not second-guess 

the district court’s resolution of conflicting testimony or its choice of which 

experts to believe.” Grilletta, 558 F.3d at 365. 

As this is a diversity case from Louisiana, we apply the substantive law 

of that state. See Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 

2009). Interpreting a contract under Louisiana law “is the determination of 

the common intent of the parties.” La. Civ. Code Ann. art. 2045. 

“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.” Id. art. 2050 (2024). “[W]hen a contract is ambiguous, the trier of 

fact must resolve the factual issue of intent . . . .” Guidry v. Am. Pub. Life Ins. 

Co., 512 F.3d 177, 181 (5th Cir. 2007). “A doubtful provision must be 

interpreted in light of the nature of the contract, equity, usages, [and] the 

conduct of the parties before and after the formation of the contract . . . .” 

Greenwood 950, L.L.C. v. Chesapeake La., L.P., 683 F.3d 666, 669 (5th Cir. 

2012) (internal quotations omitted). “If the contract remains ambiguous, 

and if there are two or more reasonable interpretations, the contract is 

construed against its drafter.” Id.

1.

Whether the Contract is ambiguous turns on the interplay between 

the text of Sections 5 and 9 of the Contract. Keiland asserts that Section 5 

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unambiguously “contemplated lump-sum compensation for any and all pretermination work,” and Section 9 only “provides additional compensation 

terms for any post-termination work.” Weeks counters that Section 9’s text

converted the Contract’s lump-sum payment structure to a cost-plus basis 

for both pre- and post-termination work, such that after termination, 

Section 5 no longer controls compensation terms. Weeks’s proffered 

interpretation notwithstanding, Weeks effectively concedes that the 

Contract is ambiguous because it accepts that both parties advance 

reasonable interpretations.

We agree with the district court that the relationship between 

Sections 5 and 9 of the Contract is ambiguous because we cannot 

“determin[e] . . . the common intent of the parties.” La. Civ. Code Ann.

art. 2045. The Contract’s text is susceptible to “two . . . reasonable

interpretations.” See Greenwood 950, 683 F.3d at 669. Keiland’s reading, 

that the sections required compensation for pre-termination work on a lumpsum basis and post-termination work on a cost-plus basis, is plausible. But so 

is Weeks’s, namely that Section 9 operated to convert all compensation due 

Keiland to cost-plus upon termination—particularly given that Section 9

specifies payment for 21% of costs “for overhead and profit associated with 

Work through the date of termination.”

Keiland’s argument that Section 9 is unambiguous is unpersuasive. 

For instance, Keiland contends that Weeks’s reading renders Section 5 

meaningless. Not so. As Weeks advances, it is also plausible that Section 5 

controlled compensation under the Contract until Weeks terminated the 

Contract, after which Section 9 became the salient provision. Under this 

reading, post-termination, Section 9 governed compensation under the 

Contract, and Section 5 no longer delineated the parties’ relationship, as the 

Contract had ended. 

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Keiland attempts to bolster its position by stating that it assumed risk 

in agreeing to pricing (under Section 5) that was “firm for the duration of the 

Project.” Keiland reasons that this evidences the parties’ intent to create a 

lump-sum compensation structure for pre-termination work. But this misses 

the mark: Whether Keiland assumed risk by signing a lump-sum contract, or 

whether Weeks knew Keiland’s reasoning, is beside the point. Neither 

contention defeats—or is even inconsistent with—Weeks’s proffered 

interpretation that compensation shifted from lump-sum to cost-plus after

termination. Under Weeks’s interpretation, Keiland would be entitled to a 

21% markup for “overhead and profit” in the eventuality of termination. 

While Keiland may have assumed risk under Section 5 that its costs would be 

greater than its lump-sum compensation “for the duration of the Project,” 

Section 9 protected Keiland in case of termination for convenience—which 

is precisely what happened. 

All considered, while Keiland’s interpretation of the Contract is 

reasonable, Weeks’s interpretation is equally plausible—if not more so—

under the text of the Contract. Faced with the impasse between the parties’ 

competing, and reasonable, interpretations, the district court correctly held 

the Contract to be ambiguous.

2.

Given the Contract’s ambiguity, the district court, as trier of fact

during the bench trial, had to “resolve the factual issue of intent,” Guidry,

512 F.3d at 181. The court concluded, as to the interpretation of Sections 5 

and 9, there was no mutual intent of the parties when they signed the 

Contract. So the district court construed the Contract against Keiland, as 

drafter of the disputed language.

Keiland does not contest that it drafted the disputed language, or that 

under Louisiana law the disputed language must be construed against the 

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drafter. Instead, Keiland attacks the district court’s finding that the parties 

lacked mutual intent. Reprising its reading of the Contract, Keiland contends 

the parties’ intent was clear: They contemplated that work completed under 

Section 5 would be compensated on a lump sum basis, and, if Weeks 

terminated the Contract, then Section 9 required post-termination work to 

be compensated cost-plus. Weeks responds that the district court correctly 

concluded that there was no meeting of the minds, and thus no mutual intent.

Keiland fails to show clear error in the district court’s finding that the 

parties lacked mutual intent. See Grilleta, 558 F.3d at 364 (outlining that 

“findings of fact [at a bench trial] are reviewed for clear error”). Testimony 

from trial indicates the parties held differing views as to Section 5 and 9’s 

interpretation. DuRousseau testified that he and Keiland’s attorney altered 

Section 9’s language to convert the Contract to cost-plus compensation for 

work completed after termination. But Hafner, on Weeks’s behalf, testified 

that he interpreted DuRousseau’s changes to Section 9 to convert all 

compensation from lump-sum to cost-plus post-termination. This

testimony, coupled with post-termination email exchanges in which the 

parties adhered to these interpretations, supports the district court’s 

conclusion that the parties did not have the same intent regarding these 

provisions. Cf. Greenwood 950, 683 F.3d at 669 (instructing that in 

interpreting contracts a court may look to “the conduct of the 

parties . . . after the formation of the contract”). 

Given theContract’s ambiguous text, and the record that supports the 

district court’s finding that the parties had no meeting of the minds as to the 

proper interpretation of the Contract, the district court properly applied 

Louisiana law and construed the disputed language against the drafter—here, 

Keiland. It follows that the district court correctly held that “Keiland’s 

compensation terms switched to the 21 percent cost-plus basis for all work 

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completed through the effective date of termination and it is not entitled to 

payment on the lump-sum basis for any work[.]”

B.

Keiland contends the district court made several errors in entering its 

summary judgment awarding damages, namely by: (1) considering the 

affidavit Weeks’s vice-president Hafner provided to counter Keiland’s 

payment calculations, (2) holding Keiland was not entitled to its direct 

employee costs, and (3) determining that Keiland was not entitled to 

demobilization costs. 

“We review grants of summary judgment de novo, applying the same 

standard as the district court.” In re La. Crawfish Producers, 852 F.3d 456, 

462 (5th Cir. 2017). “The court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “All 

reasonable inferences must be viewed in the light most favorable to the party 

opposing summary judgment, and any doubt must be resolved in favor of the 

non-moving party.” In re La. Crawfish, 852 F.3d at 462. Notwithstanding, 

“[i]f a movant alleges an absence of specific facts necessary for a nonmovant 

to establish an essential element of its case, then the nonmovant must 

respond by setting forth specific facts showing that there is a genuine 

[dispute] for trial.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir. 

2005) (citations and internal quotation marks omitted). Thereafter, “if no 

reasonable juror could find for the nonmovant, summary judgment will be 

granted.” Id. (citation omitted). This court “review[s] the district court’s 

evidentiary rulings for abuse of discretion.” King v. Ill. Cent. R.R., 337 F.3d 

550, 553 (5th Cir. 2003).

A federal court sitting in diversity must evaluate issues of state law by 

looking to the decisions of the state’s highest court. Meador v. Apple, Inc., 

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911 F.3d 260, 264 (5th Cir. 2018). If we lack case law from that court, we may 

look to decisions of the intermediate appellate courts, barring a reason to 

think the highest court would decide otherwise. Id. We may not “expand 

state law beyond its presently existing boundaries.” Barfield v. Madison 

Cnty., Miss., 212 F.3d 269, 272 (5th Cir. 2000). 

1.

Keiland challenges the admission of Hafner’s affidavit on several 

grounds but ultimately fails to show that the district court abused its 

discretion in considering the affidavit. See King, 337 F.3d at 553. First,

Keiland contends that the affidavit is “unsworn” and therefore 

“incompetent” under 28 U.S.C. § 1746 and our precedent. But § 1746

“permits unsworn declarations to substitute for an affiant’s oath if the 

statement contained therein is made ‘under penalty of perjury’ and verified 

as ‘true and correct.’” DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 

2005) (quoting Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 

1988)). And the very first line of Hafner’s affidavit states, “I, David P. 

Hafner . . . do swear and state the following under penalty of perjury that the 

following is true and correct.” Hafner’s affidavit thus clearly passes muster 

under § 1746. 

Next, Keiland attacks the affidavit as contradictory to other testimony

offered by Weeks. For example, Keiland contends that Hafner’s affidavit 

avers that the $200,000 payment Weeks made to Keiland early in the parties’ 

dispute was only for “actual costs,” while Weeks’s corporate testimony 

indicates that the payment included actual costs plus the contractual 21%

markup. Similarly, Keiland contends that Hafner’s affidavit states the 21% 

markup covered costs for Keiland’s project manager, superintendent, and 

estimator, but that Weeks’s prior testimony excludes “the project manager 

and superintendent” from the markup. And Keiland contends that Hafner 

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“wrongly state[s]” Weeks could not calculate Keiland’s costs, asserting that 

it proffered adequate support for its costs and that Weeks merely “chose” 

not to calculate them. Weeks responds to all this that Hafner’s affidavit 

clarifies, not contradicts, prior testimony and that such clarifications are 

permissible under Louisiana law. 

The district court did not abuse its discretion in considering Hafner’s 

affidavit. Summary judgment affidavits may “supplement” or “explain 

certain aspects of . . . deposition testimony.” S.W.S. Erectors, Inc. v. Infax, 

Inc., 72 F.3d 489, 495–96 (5th Cir. 1996). Hafner’s affidavit does this and 

does not contradict Weeks’s prior testimony. For instance, Weeks stated in 

its certified discovery responses that it found Keiland’s rates for its project 

manager and superintendent to be “excessive.”4 Moreover, Hafner testified 

that “the project manager, superintendent, and estimator are overhead 

people and shouldn’t be included in the [actual] cost at all.” And Hafner—

at trial and in his affidavit—testified that he could not calculate the costs 

because of “discrepancies” in the claimed costs.5

 So he simply hypothesized 

an “hourly rate . . . that [he] believed could be justified.” 

Keiland fails to show how, in any of these particulars, Hafner’s 

affidavit “impeaches,” rather than “supplements” or “explains,” the 

previous testimony. S.W.S. Erectors, Inc., 72 F.3d at 495–96. Accordingly, 

_____________________

4 Weeks argues that because the discovery responses were not admitted into 

evidence, this court should not consider Keiland’s arguments regarding the purportedly 

contradictory evidence. We pretermit whether this evidence is properly before us because

Keiland has failed to show that the district court erred in its decision to consider Hafner’s 

affidavit regardless. Cf. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (“[W]e may 

affirm a judgment upon any basis supported by the record.”). 

5 Keiland’s position that it did not need to provide detailed costs is untenable given 

the district court’s reading, which we share, that the Contract converted upon termination 

to a cost-plus compensation scheme.

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Keiland fails to show any abuse of discretion in the district court’s 

consideration of it. See King, 337 F.3d at 553. 

2.

Under Louisiana law, contractors seeking to recover their labor costs

under a cost-plus contract are subject to “strong scrutiny,” and the party 

seeking costs must show “an agreement between the parties” to do so. Foster 

v. Soule, 310 So. 2d 170, 172 (La. Ct. App. 1st Cir. 1975); see also Higgins v. 

Rini, 597 So. 2d 1238, 1240 (La. Ct. App. 3d Cir. 1992). Contracting parties 

must delineate what will be covered in a party’s claimed “costs” when those 

costs are a part of the “usual and ordinary concept of the supervisory type 

service rendered by a cost plus contractor.” Higgins, 597 So. 2d at 1240. 

Applying these principles, the district court determined that Keiland had to 

substantiate that its labor costs for its estimator, project manager, and 

superintendent were separately recoverable beyond Section 9’s allowance for 

“overhead and profit.” The court found that Keiland failed to do so, and it 

declined to weigh Keiland’s evidence, including DuRousseau’s affidavit, on 

the issue of these direct employee costs.

6 Keiland contends that this was

error because DuRousseau’s affidavit, documentary evidence, and expert 

testimony adequately substantiated Keiland’s entitlement to direct employee 

costs.7

_____________________

6 The court did not altogether ignore DuRousseau’s affidavit, as Keiland contends. 

The court simply found that DuRousseau did not offer evidence of an agreement that 

Keiland could charge direct labor costs, as required under Louisiana law. The court 

considered DuRousseau’s affidavit testimony as it pertained to other costs, e.g., for 

markups for equipment and materials and for a specific vendor’s costs. 

7 For the first time in its reply brief, Keiland contends that the district court 

misapplied Louisiana law in requiring Keiland to show an agreement between the parties 

for Keiland to recover its direct employee costs. But issues raised for the first time in a 

reply brief are forfeited. Hernandez v. United States, 888 F.3d 219, 224 n.1 (5th Cir. 2018). 

Regardless, as discussed above the line, we agree that Louisiana requires an agreement 

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The thrust of Keiland’s argument is that Keiland provided competent 

evidence proving that the parties agreed Keiland could charge for its own 

labor and outlining its direct employee costs. Keiland cites to its initial bid 

showing costs of its direct employees, “Job Detail Reports” recording the 

hours employees spent on the project, and a “rate sheet” showing hourly 

rates of project managers, superintendents, etc. But Keiland’s argument fails 

at step one, because, as the district court properly determined, none of 

Keiland’s evidence shows an agreement between it and Weeks that Keiland 

could charge for its labor costs. 

Section 5 of the Contract, which Keiland concedes controls 

compensation pre-termination, plainly offers Keiland no support, as the 

Contract’s lump sum payment structure forecloses the idea of Weeks’s 

additionally paying Keiland’s direct labor costs during performance of the 

Contract. But Keiland’s contention finds no harbor in Section 9 either. That 

provision, which controls compensation in the event of termination, allows 

Keiland to recover “the actual and necessary expense of finishing its work 

through the date of termination . . . and twenty-one percent (21%) for 

overhead and profit” for such work. This phrasing makes no mention of 

Keiland’s labor costs, and the Contract otherwise gives no hint that the 

parties intended Keiland’s labor costs for its estimator, project manager, and 

superintendent to be separately recoverable as “actual and necessary 

expense[s] of finishing [Keiland’s] work,” rather than as part of the 21% 

markup “for overhead and profit.” If anything, the inference from Section 9 

is that Keiland’s supervisory labor costs fall within “overhead and profit.” 

At bottom, Keiland fails to support any intention to the contrary, despite the 

_____________________

between contractors if one of them wishes to charge for its own labor. See Higgins, 597 So. 

2d at 1240 (“[Louisiana] law is clear that for a contractor to charge for his own labor, there 

must be an agreement between the parties.”). 

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evidence it proffered. And absent such an agreement between the parties, 

Keiland’s direct labor costs are not separately recoverable. See Higgins, 

597 So. 2d at 1240; Foster, 310 So. 2d at 172. 

3.

Likewise, the district court did not err in ruling that Keiland was not 

entitled to additional demobilization costs and in offsetting Keiland’s 

damages award against Weeks’s earlier payment to Keiland. In Keiland’s 

view, Section 9 entitles it to $25,210.35 in extra demobilization costs, 

consisting of $10,635.00 in “labor costs for its direct employees,”

$10,200.00 in attorneys’ fees, plus the 21% contractual markup.8 And 

because Weeks failed to request a “clawback” of funds previously paid for 

demobilization, Weeks cannot properly receive an offset now. Weeks 

counters that Keiland failed to show entitlement to added costs; that even if 

Keiland was entitled to such costs, its evidence was “self-generated” and 

“conflicting”; and that Weeks properly requested reimbursement for the 

estimated demobilization costs included in its initial $200,000 payment. The 

parties’ arguments as to Keiland’s demobilization costs thus largely mirror 

those related to Keiland’s direct employee costs. And Keiland’s position

falters on similar grounds. 

In a cost-plus contract, charges for a contractor’s own labor are

subject to “strong scrutiny,” and the party seeking costs must show “an 

agreement between the parties” to do so. Foster, 310 So. 2d at 172; see also 

Higgins, 597 So. 2d at 1240. As with its direct labor costs generally, Keiland 

fails to show any agreement with Weeks specifically to allow direct employee 

_____________________

8 In determining that Weeks was “entitled to reimbursement for demobilization 

costs plus markup on these costs paid to Keiland,” the district court offset these amounts 

against the total damages awarded to Keiland. On appeal, Weeks does not question the 

district court’s approach.

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costs as part of its demobilization costs. Similarly, Keiland has not shown 

that it is entitled to attorneys’ fees as part of demobilization. And Keiland is 

not entitled to a 21% markup on these expenses because, as the district court 

found, its demobilization costs arose post-termination, while Section 9 of the 

Contract entitles Keiland to the markup for “overhead and profit” for work 

“through the date of termination.” Keiland thus has not shown that the 

district court abused its discretion in declining to award these demobilization 

costs. See King, 337 F.3d at 553.

Keiland’s contention that Weeks waived its right to “clawback” 

$25,210.35 Weeks paid toward demobilization by failing to request the funds 

prior to the post-trial determination of damages also fails. Keiland contends 

that Weeks’s failure to raise the “clawback” demand sooner prejudiced 

Keiland. But in its answer to Keiland’s complaint, Weeks sought to recoup 

“[w]hatever the contract allows,” a demand repeated in Hafner’s deposition 

testimony. In fact, the record shows that Weeks requested an offset of 

previously paid demobilization costs multiple times, and that relief was wellwithin the district court’s authority. See Fed. R. Civ. P. 54(c). Given that 

Keiland failed to show any entitlement to demobilization costs under the 

Contract, summary judgment for Weeks on this point, including an offset for 

funds Weeks had previously paid, was proper. 

C.

Keiland’s final challenge is that the district court erred in finding 

Weeks was the prevailing party on the contract interpretation issue during 

the bench trial. As discussed supra, the district court construed the Contract, 

specifically Sections 5 and 9, to be ambiguous. The court then entered 

judgment against Keiland, the drafter of the disputed language, and adopted 

Weeks’s interpretation of the Contract. The court calculated damages based 

on that interpretation. From those rulings, the district court determined that 

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Weeks was the prevailing party on the single issue at trial. Applying the 

Contract’s Section 21, which provided for the prevailing party in any dispute 

to recover attorneys’ fees, the court ordered Keiland to “pay all costs and 

expenses, including expert witness fees and attorneys’ fees,” Weeks 

incurred related to trial. The court did not err in concluding that Weeks 

prevailed on the contract interpretation issue. 

We review legal determinations like the question of prevailing party 

status de novo. See HDRE Bus. Partners Ltd. Grp., L.L.C. v. RARE Hosp. Int’l, 

Inc., 834 F.3d 537, 540 (5th Cir. 2016). “The district court’s decision to grant 

or deny attorney fees is reviewed for abuse of discretion; factual findings are 

reviewed for clear error.” Alonso v. Westcoast Corp., 920 F.3d 878, 890 (5th 

Cir. 2019) (quoting McClain v. Lufkin Indus., Inc., 519 F.3d 264, 284 (5th Cir. 

2008)); see also Boes Iron Works, Inc. v. Gee Cee Grp., Inc., 2016-0207, pp. 7–

8 (La. App. 4 Cir. 11/16/16), 206 So. 3d 938, 946 (“The trial court is vested 

with great discretion in arriving at an award of attorney fees.” (citations 

omitted)). 

“State law controls both the award of and the reasonableness of fees 

awarded where state law supplies the rule of decision.” Mathis v. Exxon 

Corp., 302 F.3d 448, 461 (5th Cir. 2002). Under Louisiana law, attorneys’ 

fees are permitted only when authorized by statute or contract. Bamburg v. 

Air Sys., L.L.C., 53,848, pp. 10–11 (La. App. 2 Cir. 4/14/21), 324 So. 3d 213, 

219. Contracts authorizing attorneys’ fees “have the effect of law between 

the parties, and the courts are bound to give effect . . . to the true intent of the 

parties.” Melancon Equip., Inc. v. Nat’l Rental Co., 2007-1008, p. 4 (La. App. 

3 Cir. 2/27/08), 978 So. 2d 1053, 1057 (quotations and citation omitted). 

Keiland first argues that Weeks cannot be a prevailing party under 

Louisiana law because Weeks materially breached the Contract. Keiland 

reasons that the district court held that Weeks breached the Contract by 

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failing to pay Keiland in a timely manner. But as Weeks correctly argues,

nowhere in any of the court’s rulings did it find Weeks to have breached the 

Contract. Thus, Keiland’s proffered cases standing for the proposition that 

a breaching party may not recover damages are inapposite. Cf., e.g., Stuart 

Services, L.L.C. v. Nash Heating & Air Conditioning, Inc., 2023-00015, pp. 1–

2 (La. 3/14/23), 357 So. 3d 337, 338 (holding that a defendant cannot be found

in breach but also receive attorneys’ fees). 

Second, Keiland asserts that the contract interpretation issue was “de 

minimis” and that prevailing party status cannot hinge on de minimis issues. 

However, Keiland, without Weeks’s acquiescence, moved to bifurcate the 

issues of contract interpretation and damages, precipitating the bench trial to 

determine the Contract’s meaning. As Weeks points out, Keiland stated in 

its motion for bifurcation that “[t]his [suit] is a contract claim,” and “[t]he 

keystone issue in the suit is the interpretation of the compensation and 

termination provisions of that contract.” By Keiland’s own telling, then, the 

contract interpretation issue was not “de minimis,” and the winner of the 

trial could therefore properly be classed the “prevailing party” as to the 

case’s “keystone issue.”

Lastly, Keiland contends it, not Weeks, was rightly the prevailing 

party because the district court awarded it damages. Weeks responds that it 

never contested that Keiland was owed some amount of money; Weeks 

merely disagreed as to the amount. Therefore, Weeks reasons the damages 

award to Keiland does not mean Keiland prevailed because the district court 

awarded those damages based on Weeks’s interpretation of the Contract. 

Weeks is correct. The district court (properly) construed the 

Contract against Keiland and awarded damages under Weeks’s

interpretation of the agreement. The award to Keiland notwithstanding, the 

court thus correctly determined that Weeks prevailed on the contract 

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interpretation issue at trial. Per the Contract, it follows that Weeks was 

entitled to attorneys’ fees and costs stemming from successfully trying that 

issue. See Trafficware Group, Inc. v. Sun Industries, LLC, 749 F. App’x 247, 

253 (5th Cir. 2018) (holding that “[a]lthough [contractor] had to pay 

[subcontractor] the amount remaining under the subcontract, the amount did 

not reflect any judgment of liability for breach of contract against [contractor] 

and was reduced by the damages award to [contractor]”). 

D.

On cross-appeal, Weeks first challenges the district court’s award of 

attorneys’ fees and costs as too low. Weeks concedes that it prevailed only 

as to the contract interpretation issue, but it asserts that the court erred in 

determining that its pre-trial motions were not related to the contract 

interpretation issue and in excluding fees and costs incurred prior to 

bifurcation of the issues in September 2021. Narrowing the window for fees 

in these respects, Weeks reasons, led to the court’s improper conclusion that 

Weeks’ proffered billing data were overinclusive and vague. In the 

alternative, Weeks contends that even if some reduction in its requested fees 

and costs was warranted, the court’s reductions were errant.

9

“The trial court is vested with great discretion in arriving at an award 

of attorney fees.” Boes Iron Works, 2016-0207, pp. 7–8, 206 So. 3d at 946. In 

its order awarding damages, the district court framed its analysis by noting 

that it was required to make an initial estimate of reasonable attorneys’ fees

based on prevailing billing rates and hours reasonably expended. Then, the 

_____________________

9 Other possible interpretations of Section 21 of the Contract notwithstanding, both 

parties travel under the premise that the Contract supports an award of reasonable 

attorneys’ fees. Even Weeks, who challenges the attorneys’ fees amount, urges the court 

towards Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983), as the case that “provides clear 

guidance on determining the hours that were reasonably expended on a case.”

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court was to adjust that estimate by applying the factors articulated in Hensley 

v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).

10 But the court stopped before 

performing even the initial calculation because it found Weeks’s proffered 

evidence to be “overinclusive[] and vague[]” and “not sufficiently itemized 

and ascertainable to account for only those reasonably recoverable fees” 

incurred in litigating the contract interpretation issue at trial.

To remedy Weeks’s ostensibly insufficient evidence, the district court 

made an alternative calculation of Weeks’ attorneys’ fees and costs, finding: 

that twenty percent of Weeks’s reduced liability exposure is an 

appropriate measure of an award for attorney’s fees . . . . [T]he

amount recovered by Keiland against Weeks based on the 

[c]ourt’s July 11, 2023 Judgment is $318,936.59. Keiland 

demanded an award of $705,520.09. The [c]ourt’s July 11, 

2023 Judgment . . . is $386,583.50 less than $705,520.09, the 

amount that Keiland sought . . . . Thus, Weeks avoided 

$386,583.50 in potential liability. Twenty percent of [that 

amount] results in an award in the amount of $77,316.70 for 

attorney’s fees payable by Keiland to Weeks. 

The district court also reviewed Weeks’s requested costs but determined 

_____________________

10 The Hensley factors, which “derive directly from the American Code of 

Professional Responsibility,” are: 

(1) the time and labor required; (2) the novelty and difficulty of the 

questions; (3) the skill requisite to perform the legal service properly; 

(4) the preclusion of employment by the attorney due to acceptance of the 

case; (5) the customary fee; (6) whether the fee is fixed or contingent; 

(7) time limitations imposed by the client or the circumstances; (8) the 

amount involved and the results obtained; (9) the experience, reputation, 

and ability of the attorneys; (10) the “undesirability” of the case; (11) the 

nature and length of the professional relationship with the client; and 

(12) awards in similar cases. 

461 U.S. at 430 n.3 (citing Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 

1974)). 

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most were subsumed within the $77,316.70 total and awarded only an 

additional $342.17 for costs.

Tellingly, Weeks cites no cases suggesting the district court abused its 

discretion to the extent it excluded Weeks’s pre-bifurcation costs and fees. 

And we do not read the district court’s determination of fees as categorically 

excluding all pre-bifurcation expenses. Rather, the court found that it could 

not “accurately determine the hours reasonably expended on the bench trial 

and contract interpretation issue,” and pointed to some of Weeks’s prebifurcation fees as examples of Weeks’s overinclusive evidence. Weeks fails 

to show the district court erred in its approach or, particularly, in finding that 

Weeks’s evidence was vague and overinclusive such that the court was 

unable to determine what fees and costs were attributable to the contract 

interpretation issue as tried. See Alonso, 920 F.3d at 890.

Alternatively, Weeks asserts that even if a reduction in fees was 

appropriate, the district court’s drastic reduction was an abuse of discretion. 

But we discern no reversible error. A trial court may reduce an attorneys’ 

fees award “to the highest amount a reasonable factfinder could have 

awarded” if “it would be impossible to relate specific fees to the issues upon 

which the [party] did not prevail.” Bamburg, 53,848, p. 11; 324 So. 3d at 219

(describing LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc.,

2006-0489 (La. App. 4 Cir. 4/16/08), 983 So. 2d 217). Here, the district 

court arrived at $77,316.70 for attorneys’ fees, grounded upon its findings 

that Weeks’s proffered evidence was “overinclusive[] and vague[]” and 

“not sufficiently itemized and ascertainable to account for only those 

reasonably recoverable fees” related to trial of the contract interpretation 

issue. These findings are not clearly erroneous on the record before us, and 

Weeks offers no caselaw to support that the district court abused its 

discretion as to the fee amount awarded, arguing instead merely that the 

district court unreasonably applied the Hensley factors. This argument lacks 

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merit. We therefore uphold the award of attorneys’ fees and costs to Weeks 

in the amount of $77,658.87.

E.

Finally, Weeks contends the district court erred by awarding Keiland 

prejudgment interest and denying Weeks’s post-offer attorneys’ fees and 

costs. The district court did not err in either respect. 

“State law governs the award of prejudgment interest in diversity 

cases.” Harris v. Mickel, 15 F.3d 428, 429 (5th Cir. 1994). Under Louisiana 

law, “[w]hen the object of the performance is a sum of money, damages for 

delay in performance are measured by the interest on that sum from the time 

it is due.” LA. Civ. Code Ann. art. 2000. “[W]hen a party prays for an 

award of interest in a pleading seeking a monetary judgment, the court lacks 

discretion to deny interest on the award.” In re succession of Banks, 11-26 (La. 

App. 5 Cir. 6/29/11), 71 So. 3d 1086, 1099; see La. Code Civ. Proc.

Ann. art. 1921. We review a trial court’s award of prejudgment interest for

an abuse of discretion. Imperial Chemicals Ltd. v. PKB Scania (USA), Inc., 

2004-2742, p. 20 (La. App. 1 Cir. 2/22/06), 929 So. 2d 84, 98. The court 

reviews the district court’s application of Federal Rule of Civil Procedure 68 

de novo, but “[a]ny factual findings concerning the circumstances under 

which Rule 68 offers are made are reviewed for clear error.” Hobbs v. Alcoa, 

Inc., 501 F.3d 395, 398 (5th Cir. 2007). Keiland demanded interest in its 

petition, and the district court accordingly did not abuse its discretion in 

awarding it. 

Nonetheless, Weeks argues this case is unusual because Weeks “did 

not know what to pay Keiland until receipt of its cost documents.” In 

Weeks’s view, a court should deny interest in “peculiar circumstances” 

when equity militates against a defendant paying interest. See Noritake Co. v. 

M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980) (“Discretion to 

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deny prejudgment interest is created only when there are ‘peculiar 

circumstances’ that would make it inequitable for the losing party to be 

forced to pay prejudgment interest.”); see also Shallow Waters Equip. LLC v. 

Pontchartrain Partners, LLC, No. 21-949, 2022 WL3755041, at *13 (E.D. La. 

Aug. 30, 2022). But Noritake and Shallow Waters are inapposite because 

those cases involved interest awarded under federal admiralty law, not

Louisiana law. 

Instead, this case again mimics Trafficware, in which this court 

affirmed an award of prejudgment interest, even though the “amount was 

unascertainable in light of the disputes about breach of contract and other 

damages.” 749 F. App’x at 254. Weeks fails otherwise to show any error in 

the district court’s awarding prejudgment interest in this case.

Similarly, Weeks’s argument that the court should have awarded its 

attorneys’ fees and costs incurred after Weeks made an offer of judgment 

lacks merit. In cases where “the judgment that the offeree finally obtains is 

not more favorable than the unaccepted offer, the offeree must pay the costs 

incurred after the offer was made.” Fed. R. Civ. Proc. 68(d); cf. Antill 

v. State Farm Mut. Ins. Co., 20-131, pp. 9–10 (La. App. 5 Cir. 12/2/20), 308 

So. 3d 388, 410 (applying Louisiana Code of Civil Procedure article 970, 

which “provides for the payment of costs when an offer of judgment has been 

made and rejected”).

11 In interpreting Rule 68 offers of judgment, “[c]ourts 

_____________________

11 A threshold question is whether to apply federal law or Louisiana law in 

comparing the offers of judgment. Cf. Ashland Chemical Inc. v. Barco Inc., 123 F.3d 261, 

264–65 (5th Cir. 1997) (“We therefore must determine whether the Local Rule is 

procedural . . . or substantive.”). “[I]n a diversity case a federal court must apply the 

substantive law of the state while following federal procedural rules. Unfortunately, a clear 

and obvious distinction between rules of procedure and rules of substance does not always 

exist.” Id.; see also 12 Charles Alan Wright & Arthur R. Miller Federal 

Practice and Procedure § 3001.2 (3d. ed. 2024) (discussing the complexities of 

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apply general contract principles.” Basha v. Mitsubishi Motor Credit of Am., 

Inc., 336 F.3d 451, 453 (5th Cir. 2003). As Weeks concedes, the court’s total 

award to Keiland of $118,936.59 exceeds Weeks’s $100,000 offer of 

judgment, which was, per the offer’s terms, “inclusive of all costs, fees, and 

interest.” Because we affirm the court’s final award to Keiland, we also 

affirm the court’s denial of Weeks’s motion for attorneys’ fees and costs 

accrued after its Rule 68(d) offer of judgment. 

III.

The district court correctly determined that the Contract between 

Weeks and Keiland was ambiguous and then properly resolved the ambiguity 

against Keiland, as the drafter of the disputed contractual language. From its 

bench trial determination as to liability under the Contract, the district court 

properly entered summary judgment as to the damages owed Keiland by 

Weeks. The district court’s ensuing calculations of attorneys’ fees and 

prejudgment interest reveal no reversible error. 

For the reasons discussed, the judgment of the district court is 

AFFIRMED.

_____________________

applying federal or state law to Rule 68 offers of judgment). But we may pretermit the issue 

here because Weeks’s argument fails regardless of whether federal or state law applies. 

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