* Senior Circuit Judge of the Ninth Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-9581.

The TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee Cross-Appellant,

v.

LILJEBERG ENTERPRISES, INC., Defendant-Appellant Cross-Appellee.

Nov. 26, 1993.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before SNEED * , REYNALDO G. GARZA, and JOLLY, Circuit Judges.

SNEED, Senior Circuit Judge:

This is a case invo lving a large l andlo rd-lender and a major corporate tenant. Defendant

Liljeberg Enterprises, Inc. (LEI), the tenant, appeals the district co u rt order granting Plaint iff

Travelers Insurance Company (Travelers), the landlord-lender, summary judgment in Travelers's

action to enforce two leases, 799 F.Supp. 641 (E.D.La.1992).

Travelers cross appeals on the grounds that (1) the distri ct court should have awarded

accelerated rent with interest according to Louisiana law from the date of LEI's default rather than

legal interest from the date of judgment and (2) the district court should have awarded attorney fees.

We affirm the district court's grant of summary judgment to Travelers but remand for entry

of judgment to award Travelers prejudgment interest.

I.

FACTS AND PRIOR PROCEEDINGS

The facts pertinent to the leases at issue are not in dispute. LEI initially leased space in the

St. Jude Medical Office Building ("the building") on May 1, 1985, from the St. Jude Medical Office

Building Limited Partnership ("Partnership"). Under this first lease, LEI rented 11,893 square feet

o f t he building for a ten-year term from August 1, 1985, to July 31, 1995, at a monthly rate o f

$14,866.25. The Partnership was authorized to grant a mortgage on the building to an "Institutional1 In this foreclosure action against the Partnership ( Travelers Ins. Co. v. St. Jude Hosp., No.

90-1983), the district court entered partial summary judgment for Travelers, recognized its

mortgage on the building, and directed that the property be sold.

2 Section 20(g) of the leases provides:

[I]n the event of the termination of this Lease or of any succeeding lease made

pursuant to the provisions of this clause prior to the expiration date, Lessee will

enter into a new lease of the Leased Premises with the Institutional Mortgagee for

the remainder of the term of this Lease, effective as of the date of such

termination, at the rent and additional rent and upon the covenants, agreements,

terms, provisions and limitations herein contained provided such Institutional

Mortgagee makes written request upon the Lessee for such new lease within thirty

(30) days from the date of such termination. Mortgagee," defined to include insurance companies like Travelers.

On October 10, 1985, Travelers loaned the Partne rship $25 million, and the Partnership

executed and delivered to Travelers an interest-bearing promissory note in that amount plus interest.

The Partnership granted Travelers a mortgage on the building an d assigned all rents to be paid on

leased spaces in the building to Travelers.

On May 1, 1987, LEI entered into a second lease with the Partnership for an additional 1,800

square feet in the building. This lease was for a five-year term and had a monthly rental of $2,250;

it also was subject to the lease assignment and was identical in form to the first lease.

In March 1990, the Partnership defaulted on its payments to Travelers. Travelers filed suit

against the Partnership in June 1990. 1 At public auction on October 18, 1991, the building was sold

to Travelers, the only bidder. Acting pursuant to section 20(g) 2 of the first and s econd leases,

Travelers delivered to LEI two proposed leases on November 15, 1991. LEI refused to sign the

leases or pay any monthly rentals.

On December 11, 1991, Travelers sent LEI a notice of default. LEI neither responded nor

paid the outstanding rental. Travelers then elected to accelerate all rent payments pursuant to section

22 of the leases. On January 6, 1992, Travelers filed a complaint against LEI in district court seeking

a declaratory judgment that the proposed leases were valid and enforceable and seeking damages in

the amount of all accelerated rent due under the leases with contractual interest, costs, and attorney

fees. LEI answered the complaint and denied liability.3 On July 17, 1992, Travelers moved to submit a Memorandum in Reply to LEI's Opposition to

Travelers's Summary Judgment Motion on the ground that LEI's Opposition raised issues not

addressed in Travelers's original memorandum. The court granted this motion on July 20, 1992.

4 The deadline for filing of pleadings was July 17, 1992. Because Travelers had not received

Maher's executed affidavit by that date, it submitted an unexecuted affidavit. On July 20, 1992,

Travelers moved to substitute the unexecuted affidavit with the executed version. On July 22,

1992, the court granted the motion. We discuss the propriety of this decision below. Travelers moved for summary judgment on June 16, 1992. LEI submitted its opposition

response on July 7, 1992, with a supporting affidavit from its president, who claimed that Travelers

failed to deliver possession of the premises. Travelers's motion was taken under consideration by the

dist rict court on July 15, 1992. On July 17, 1992, Travelers submitted its reply memorandum; 3

exhibits were attached, including an affidavit 4 of Yvette Maher, t he building's property manager.

Maher attested that LEI never had been denied access to its building space and that the space neither

had been leased to nor otherwise used by anyone except LEI.

Deciding Travelers's motion on the briefs and ex hibit s, the district court granted Travelers

summary judgment on August 13, 1992. On August 18, 1992, the court awarded Travelers damages

of $746,086.95 with legal interest from the date of judgment and all costs. Both parties appeal, with

LEI seeking to overturn the judgment and Travelers seeking to increase it.

II.

JURISDICTION AND STANDARDS OF REVIEW

The district court had di versity jurisdiction pursuant to 28 U.S.C. § 1332. This court has

jurisdiction pursuant to 28 U.S.C. § 1291.

Our review of the district court's grant of summary judgment is de novo. Fireman's Fund Ins.

Co. v. Murchison, 937 F.2d 204, 207 (5th Cir.1991). We must ask whether no questions of material

f act exist that would bar the moving party from being entitled to judgment as a matter of law.

Schuster v. Martin, 861 F.2d 1369, 1371 (5th Cir.1988). Our standard of review for contract

interpretation is de novo. See Matador Drilling Co. v. Post, 662 F.2d 1190, 1197 (5th Cir.1981).

III.

DISCUSSION5 The statements in this affidavit concerning possession were:

Travelers has not provided LEI with possession of the premises described by the

First Proposed Lease.

Travelers has not provided LEI with possession of the premises described by the

Second Proposed Lease. LEI raises three issues on appeal. First, LEI contends that summary judgment was improper

because the pleadings and affidavits raised a genuine issue of material fact concerning whether

Travelers had delivered possession of the leased premises. Second, LEI claims that the district court

improperly considered an affidavit submitted by Travelers. Third, LEI argues that the district court

erred in interpreting and applying various lease provisions. We discuss each in turn.

A. Summary Judgment

First, we consider LEI's contention that summary judgment was improper because there was

a genuine issue of material fact c o ncerning whether Travelers denied LEI access to the leased

premises. In opposing Travelers's motion, LEI submitted president John A. Liljeberg's, Jr., affidavit,

which included conclusory allegations that Travelers had not provided LEI with possession. 5 This

affidavit did not indicate when or how LEI was denied possession of the premises. Responding to

LEI's opposition, Travelers attached to its reply memorandum Maher's affidavit in which she attested

that LEI never was denied access to its space in the building.

This exchange does not necessitate a trial on the issue of possession. When seeking summary

judgment, the moving party bears the burden of showing there are no genuine factual issues such that

the movant is entitled to judgment as a mat t er o f law. The opponent must meet the movant's

affidavits with opposing affidavits that set out specific facts showing an issue for trial. S ee Gossett

v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978) (citations omitted). Although the Fifth Circuit

has not been liberal in affirming summary judgments, "conclusory alleg at ions supported by a

conclusory affidavit will not suffice to require a trial." S haffer v. Williams, 794 F.2d 1030, 1033 (5th

Cir.1986). This is true even if the movant cannot demonstrate contrary facts by specific affidavit

recitation to rebut the conclusory affidavit. S ee id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1196

(5th Cir.1986); s ee also Broadw ay v. Montgomery, 530 F.2d 657, 660 (5th Cir.1976) (nonmovant'saffidavit reciting unsupported, conclusory allegations insufficient to avoid summary judgment). Two

opposing conclusory affidavits do not preclude summary judgment.

Under Louisiana law, "possession" is defined as the exercise o f physical acts of use,

detention, or enjoyment over a thing. La.Civ.Code Ann. art. 3425. Liljeberg's affidavit did not raise

a genuine issue of possession. Having offered no evidence of specific acts taken by Travelers that

res ult ed in LEI's loss of possession, Liljeberg's affidavit left open only the possibility that LEI had

voluntarily surrendered possession to someone other than Travelers. This creates no genuine issue

relevant to this case.

Seco nd, we consider LEI's argument that the district court erred in allowing Travelers t o

submit a reply memorandum with exhibits after having submitted its summary judgm ent motion.

Specifically, LEI maintains that the court erred in considering the Maher affidavit that was attached

to the reply memorandum wi t hout affording LEI a hearing and an opportuni ty to object to or

contradict the affidavit in a genuine issue-creating manner.

We find this procedural challenge unpersuasive. Rule 56(c) of the Federal Rules of Civil

Procedure requires that the party opposing a summary judgment motion receive 10 days' notice that

the matter will be taken under advisement on a certain day. S ee Fed.R.Civ.P. 56(c); K ibort v.

Hampton, 538 F.2d 90, 91 (5th Cir.1976). It is undisputed that LEI received sufficient notice that

the court would be considering Travelers's motion on a specific date and that LEI had the opportuni ty

to respond with affidavits.

Nor was the Maher affidavit so untimely tha t t he district court erred in considering it.

Travelers's reply memorandum was submitted on July 17, 1992, with Maher's unexecuted affidavit,

which it substituted with an executed affidavit five days later with the court's permission. LEI had

notice of the contents of the Maher affidavit on July 17, 1992, the date Travelers moved to submit

its reply memorandum. Three weeks elapsed between the submission of the executed affidavit on July

22, 1992 and the court's grant of summary judgment on August 13, 1992. LEI had ample time to

o bject t o t he Maher affidavit but never did. LEI filed no motions to supplement its opposition to

Travelers's summary judgment motion.6 Sections 20(f) and (g) are joined by an "and" so that they are read together to allow the

Institutional Mortgagee's rights to survive foreclosure. Section 20(f) provides:

[A]ny Institutional Mortgagee or third person purchaser at a foreclosure sale may

become the legal owner or holder of this Lease by foreclosure of the Institutional

Mortgage or as a result of the assignment of this Lease in lieu of foreclosure,

whereupon such Institutional Mortgagee or third person purchaser shall

immediately become and remain liable under this Lease, except that, as to accrued

amounts payable by Lessor to Lessee under this Lease as of such date, the Lessee

shall have no recourse against the Institutional Mortgagee; and....

See supra note 2 for text of section 20(g). Third, we now consider LEI's argument that the court misinterpreted the lease terms. LEI

argues that the district court should not have enforced the leases because, when Travelers delivered

them to LEI, it already had foreclosed its mortgage and thus was no longer an "Institutional

Mortgagee" entitled to enforce section 20(g) of the original leases. Under Louisiana law, a contract

is read for its plain meaning. See Ingram Corp. v. J. Ray McDermott & Co., 698 F.2d 1295, 1312

(5th Cir.1983). "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." La.Civ.Code

Ann. art. 2046. S ee, e.g., Ransom v. Camcraft, Inc., 580 So.2d 1073, 1076 (La.Ct.App.1991). We

agree with

t he co urt 's interpretation of sections 20(f) and (g) and find that they provided for

foreclosure by T ravelers and enabled it to enforce the leases. 6 Despite foreclosure, Travelers

remained an "Institutional Mortgagee."

Moreover, we find no merit in LEI's arguments that Travelers cannot invoke section 20(g)

because (1) it does not contemplate a third party beneficiary, or (2) if a t hird part y beneficiary

contract was created, Travelers cannot receive the benefits because it failed to manifest its intention

to receive them before the original leases were dissolved at the judicial sa le. Essentially these

arguments rest on those already rejected. The contracts, sensibly read, repudiate these contentions.

Further, we agree with the court's interpretation of secti o n 22(g) as allowing Travelers to collect

accelerated rentals as a remedy for LEI's default.

B. Aw ard of Interest

Travelers raises two issues in its cross appeal. First, it contends that it should have received7 Louisiana's legal interest rate is set out in article 2924(B)(3)(a) of its Civil Code. As amended

in 1989, it provides that the rate of judicial interest resulting from a lawsuit pending or filed on or

after January 1, 1988, "shall be equal to the rate as published annually ... in the Louisiana Register

by the commissioner on financial institutions." La.Civ.Code Ann. art. 2924(B)(3)(a). prejudgment and postjudgment interest at the contractual rate rather than only postjudgment interest

at the federal legal rate. Second, Travelers argues that it was entitled to attorney fees under the lease

terms.

Travel ers directs our attention to section 2(c) of the leases, which provides that any rental

payment not made within 10 days of the first d ay o f the month in which it is due "shall bear a late

charge equal to the highest lega l int erest rate allowable for each month in which payment is

delinquent." Travelers reads this to mean (1) that interest began to accrue on LEI's rental obligations

10 days after default, which occurred several months prior to the district court's entry of judgment,

and (2) that the "highest legal interest rate" refers to any interest that does not violate Louisiana's

prohibition on usury. Travelers urges us to employ the legal rate used by Louisiana courts, which is

higher than the legal rate under federal law. 7

1. Prejudgment Interest

The district court awarded Traveler s only postjudgment interest at the federal legal rate

pursuant to 28 U.S.C. § 1961. This statute, however, has no bearing on whether Travelers is entitled

to prejudgment interest. See, e.g., West v. Harris, 573 F.2d 873, 882 (5th Cir.1978), cert. denied,

440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979). It does not limit successful plaintiffs to interest

from the date of judgment. S ee Louisiana & Ark. Ry. v. Export Drum Co., 359 F.2d 311, 317 (5th

Cir.1966). Situations should be recognized in which a wronged party can be afforded full relief only

if awarded interest from the date pa yment sho uld have been received rather than from the date of

judgment alone. S ee, e.g., West, 573 F.2d at 883; E xport Drum Co., 359 F.2d at 317. Because the

lease terms provided that interest would begin accruing 10 days after the lessee's payment became

due, Travelers should have received prejudgment interest as well as postjudgment interest. See St.

Tammany Manor, Inc. v. Spartan Bldg. Corp., 50 9 So.2d 424, 426-427 (La.1987) (accordi ng to

La.Civ.Code Ann. art. 2038, all debts bear interest from t he t ime t hey are due, unless otherwisestipulated).

Next we must decide whose law to apply to deter mine t he rat e of prejudgment interest.

Prejudgment interest is governed by state law in diversity cases. C oncise Oil & Gas Partnership v.

Louisiana Intrastate Gas Corp., 986 F.2d 1463, 1472 (5th Cir.1993). A federal court with diversity

jurisd ict io n follows the choice of law rules of the state in which it sits. S orrels Steel Co. v. Great

Southwest Corp., 906 F.2d 158, 167 (5th Cir.1990). Although there is little Louisiana authority on

the proper choice of law for prejudgment interest, article 3515 of Louisiana's Civil Code resolves

choice of law questions for written instruments, including leases. This provision states in relevant

part: "The form and effect of public and private written instruments are governed by the laws and

usages of the places where they are passed or executed." La.Civ.Code Ann. art. 3515. Moreover,

the generally held view is that the interest rate for damages for breach of contract is determined by

the law of the place where the contract is to be performed. G lazer v. Glazer, 278 F.Supp. 476, 486

(La.1968).

In this case, the leases were executed in Louisiana, and the leased property was located in

Louisiana. Execution and performance of the leases occurred in the same state. Therefore, under

Louisiana's choice of law rule stated in article 3515 or the principle announced in Glazer, supra, the

result is the same. Thus, Louisiana law governs the contractual relationship of Travelers and LEI,

including the issue of prejudgment interest.

In Louisiana, "[w]hen the object of performance is a sum of mo ney, damages for delay in

performance are measured by the interest on that sum from the time it is due, at the rate agreed by

the parties or, in the absence of agreement, at the rate of interest as fixed by Article 2924."

La.Civ.Code Ann. art. 2000. Pursuant to this article, Travelers is entitled to prejudgment interest at

the rate set out in the leases. The lease terms provided for a "late charge equal to the highest legal

interest rate allowable" on delinquent rent payments. Because Louisiana law applies and because the

leases failed to include a specific int erest rate or method of calculation, Travelers should receive

prejudgment interest under La.Civ.Code Ann. art. 2924, as this is "the highest legal rate allowable."

See Meyer v. Consolidated Mktg., Inc., 376 So.2d 1278, 1280 (La.Ct.App.1979) (Louisiana courts8 Even if the leases did not contain a provision concerning a rate of interest, Travelers

nevertheless would have been entitled to prejudgment interest pursuant to La.Civ.Code Ann. art.

2924. See T. Cvitanovich Seafoods, Inc. v. Campo, 617 So.2d 964, 965-66 (La.Ct.App.1993),

cert. denied, 620 So.2d 847 (La.1993). "have consistently held that in a suit to recover amounts due on a promissory note," the interest rate

stipulated in the note applies). 8 Therefore, we remand to calculate prejudgment interest.

2. Postjudgment Interest

Travelers incorrectly contends that it also is entitled to postjudgment interest at Louisiana's

legal rate rather than the federal rate. The majority of the circuit s have held that the federal

postjudgment

interest statute, 28 U.S.C. § 1961, applies to "any judgment in a civil case recovered

in a district court, ... including actions based on diversity of citizenship. " Chapman & Cole v. Itel

Container Int'l B.V., 865 F.2d 676, 689 (5th Cir.1989), cert. denied, 493 U.S. 872, 110 S.Ct. 202,

107 L.Ed.2d 155 (1989) (emphasis in original) (surveying cases). The Fifth Circuit has agreed with

this application of section 1961. S ee id.; Nissho-Iw ai Co. v. Occidental Crude Sales, Inc., 848 F.2d

613, 622 (5th Cir.1988).

However, section 1961 fixes the rate of prejudgment interest only when it is a federal question

that must be governed by federal law. S ee, e.g., Cramer v. Association Life Ins. Co., 619 So.2d 821,

826 (La.Ct.App.1993). As already noted, there is no federal statutory rate universally applicable to

prejudgment interest. Section 1961, therefore, is used only in the limited circumstances outlined here.

Therefore, a court with diversity jurisdiction awards prejudgment interest according to state

law, which in Louisiana is the interest rate set out in article 2924 unle ss t he parties stipulated to a

different rate, but calculates postjudgment interest according to the federal rate. S ee id. at 624. We

have addressed the issue of prejudgment interest in the preceding section. Because the district court

properly awarded Travelers's postjudgment interest, we leave that part of the judgment undisturbed.

C. Attorney Fees

In Louisiana, attorney fees are recoverable only where authorized by statute or contract. S ee,

e.g., Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 763 (La.198 5 ). The lease

provision which sets out available remedies upon the lessee's default contains three separate clauses.They are mutually exclusive. Travelers elected to enforce the leases and accelerate the rents and may

not now invoke the remaining remedies. The district court properly refused to award Travelers

attorney fees.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR ENTRY OF

JUDGMENT AWARDIN G TRAVELERS PREJUDGMENT INTEREST PURSUANT TO

LA.CIV.CODE ANN. ART. 2924.