IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10806

Summary Calendar 

PLAINS COTTON COOPERATIVE ASSOCIATION, 

 Plaintiff–Appellee, 

v. 

GARY L. GRAY; GRAY FARMS, INCORPORATED, 

 Defendants–Appellants. 

Appeal from the United States District Court

for the Northern District of Texas 

USDC 5:14-CV-171

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. 

PER CURIAM:*

 Defendants–Appellants Gary Gray and Gray Farms, Inc. (collectively, 

“Gray”) appeal the district court’s partial grant of summary judgment in favor 

of Plains Cotton Cooperative Association (“PCCA”), its denial of Gray’s motion 

for leave to amend the pleadings to add Elliott Producers Gin (“Elliott”) as a

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2016

Lyle W. Cayce

Clerk

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third-party defendant, and the amount the district court awarded PCCA in 

attorneys’ fees. For the following reasons, we AFFIRM. 

I. FACTS AND PROCEDURAL BACKGROUND 

This case arises out of a contract dispute between Gray, a cotton farmer, 

and PCCA, an operator of a marketing pool that markets and sells the crops of 

multiple cotton producers. Gray and PCCA initially entered into five identical 

contracts which obligated Gray to deliver his 2010 cotton crop to PCCA, and in 

turn obligated PCCA to market and sell the cotton and deliver any profits to 

Gray. Before Gray was required to perform, PCCA sent Gray five amended 

agreements, which contained several terms that deviated from the original 

contracts. The new proposed contracts were delivered through Elliott and were 

accompanied by a cover later from Elliott requesting signatures on the new 

versions of the contracts. Purportedly believing that these new contracts were 

materially different from the old versions and that there was no longer had an 

enforceable agreement with PCCA, Gray never delivered the 2010 cotton crop. 

On July 17, 2014, PCCA filed a breach of contract action against Gray in 

state court in Lubbock, Texas.1 Gray removed the case to federal court on the 

basis of diversity jurisdiction. The district court entered a scheduling order on 

October 7, 2014, and on February 1, 2016, the parties both timely filed 

competing motions for summary judgment. Thereafter, Gray filed a motion to 

amend the pleadings to add Elliott as a third-party defendant and to request a 

 

1 Gray initially filed suit in 2011 in Oklahoma state court seeking declaratory 

judgment that he was not obligated to deliver the 2010 cotton crop to PCCA under the original 

contracts. Because the contracts contained a clause requiring any dispute regarding the 

agreements be brought in Lubbock, Texas, the state court dismissed the case without 

prejudice on the basis of improper venue. Gray then filed a motion for a new trial in 

Oklahoma state court which was ultimately denied. Although he appealed this decision, the 

Oklahoma Court of Civil Appeals affirmed the district court, and the Oklahoma Supreme 

Court denied Gray’s petition for a writ of certiorari. 

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new scheduling order. The district court denied Gray’s motion to amend 

pleadings and granted summary judgment in favor of PCCA on its breach of 

contract claim. The court then entered judgment in favor of PCCA and granted 

PCCA’s motion for attorneys’ fees. Gray timely appealed. 

II. DISCUSSION 

A. Summary Judgment 

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

standard that the district court applied.” Smith v. Reg’l Transit Auth., 827 F.3d 

412, 417 (5th Cir. 2016). Thus, summary judgment is proper where “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). In 

reviewing a motion for summary judgment, factual inferences are viewed in 

the light most favorable to the nonmoving party. Smith, 827 F.3d at 417.

To prove breach of contract, a plaintiff must establish “(1) the existence 

of a valid contract between the plaintiff and defendant, (2) the plaintiff’s 

performance or tender of performance, (3) the defendant’s breach of the 

contract, and (4) the plaintiff’s damage as a result of the breach.” Hunter v. 

Pricekubecka, PLLC, 339 S.W.3d 795, 802 (Tex. App.—Dallas 2011, no pet.).

The parties agree that they originally entered five valid contracts under which 

Gray was bound to deliver the 2010 cotton crop to PCCA and PCCA was 

required to market and sell Gray’s cotton. Gray also does not dispute PCCA’s 

contention that Gray failed to deliver the 2010 cotton crop. Instead, Gray 

argues that performance under the original contracts was excused because 

PCCA purportedly repudiated the original contracts. Gray contends that 

PCCA did so by sending Gray new contracts with ostensibly “materially 

different terms” along with cover letters that Gray claims indicated that 

“PCCA would not honor the [o]riginal [c]ontracts.” 

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Anticipatory repudiation is an affirmative defense to a breach of contract 

claim. El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 621–22 

(Tex. App.—Houston [1st Dist.] 2003, pet. denied). “A repudiation or 

anticipatory breach occurs when a party’s conduct ‘shows a fixed intention to 

abandon, renounce, and refuse to perform the contract.’” Hunter, 339 S.W.3d 

at 802 (quoting SAVA gumarska in kemijska industria d.d. v. Advanced 

Polymer Sci., Inc., 128 S.W.3d 304, 315 (Tex. App.—Dallas 2004, no pet.)). But 

such repudiation “must be absolute and unconditional.” Id. In other words, 

“[t]he declaration of intent to abandon the obligation must be in positive and 

unconditional terms.” Narvaez v. Wilshire Credit Corp., 757 F. Supp. 2d 621, 

631 (N.D. Tex. 2010) (citing Preston v. Love, 240 S.W.2d 486, 487 (Tex. Civ. 

App.—Austin 1951, no writ)). 

Thus, to show anticipatory repudiation, Texas courts have required that 

a party overtly communicate its intent not to perform under a valid and 

enforceable agreement. Compare Hunter, 339 S.W.3d at 803 (holding that mere 

presentation of a settlement agreement absent direct language or conduct 

evincing intent not to perform did not constitute a “fixed intention to abandon” 

the original contract (quoting SAVA, 128 S.W.3d at 315)), with Hauglum v. 

Durst, 769 S.W.2d 646, 649, 651 (Tex. App.—Corpus Christi 1989, no writ) 

(determining that the appellant “definite[ly] manifest[ed]” that he would no 

longer perform the terms of his original contract when he orally requested an 

amendment and after being rebuffed, drove the appellee out to a deserted 

country road, threatened to sue him, stated that he “was mad enough to smash 

[the appellee’s] face in,” and admonished the appellee that “he had better have 

an amended agreement on his desk by noon the next day”), and Laredo Hides 

Co. v. H&H Meat Prods. Co., 513 S.W.2d 210, 216, 221 (Tex. Civ. App.—Corpus 

Christi 1974, writ ref’d n.r.e.) (finding anticipatory repudiation where a meat 

packer “unequivocally told [a representative of a hide company] that he was 

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not going to sell him any more hides, and further advised that it was useless 

for him to send a truck for the hides”). 

Following this pattern, Texas courts require more than a mere attempt 

to renegotiate material terms of the initial contract to find repudiation. In City 

of The Colony v. North Texas Municipal Water District, two cities (Frisco and 

The Colony) and a municipal water district entered into a contract where the 

district would operate a wastewater-treatment plant for the cities. 272 S.W.3d 

699, 715 (Tex. App.—Fort Worth 2008, no pet.). Under the agreement, both 

cities bore the responsibility of transporting their own wastewater to the plant. 

Id. The plant, however, was located entirely within Frisco’s borders, thus 

requiring The Colony to run through Frisco’s property to deliver its 

wastewater. Id. Because Frisco refused to grant access easements to The 

Colony unless it conveyed part of its territory to Frisco—a move that The 

Colony alleged was an “attempt[] to negotiate new terms that were materially 

different from those in the initial agreement”—The Colony argued that it was 

entitled to summary judgment that Frisco had repudiated their initial 

contract. Id. at 717, 738. In spite of Frisco’s clear desire to negotiate a separate 

real property agreement with The Colony, the court concluded that The Colony 

did not “raise a genuine issue of material fact that Frisco demonstrated by 

words or actions either an intent not to perform or an inability to perform its 

obligations under the [c]ontract.” Id. at 738.

Just as The Colony argued that Frisco was attempting to renegotiate 

terms of their original agreement, Gray argues that PCCA attempted to force 

Gray to agree to materially new terms by sending Gray amended versions of 

the original contracts along with a cover letter stating that PCCA was 

“requiring” new signatures. As was also the case in The Colony, however, here 

the purported attempt to change material terms of the contract is not 

accompanied by any affirmative language communicating a fixed intention not 

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to perform under the original agreement. Although the cover letters did use 

the word “requiring,” they also went on to explain that signing and returning 

the new contracts would ensure that “everything [would] be ready when [Gray] 

want[ed] checks for cotton.” This language does not rise to the level of a positive 

and unconditional intent to abandon the original contracts and does not create 

a genuine dispute of fact regarding whether the contract was repudiated. 

Accordingly, we hold that the district court did not err in granting PCCA 

partial summary judgment on its breach of contract claim.2

B. Motion to Amend the Pleadings to Join a Third Party 

The denial of leave to amend a pleading is reviewed for abuse of 

discretion. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 

2010). Where a scheduling order has been issued, Federal Rule of Civil 

Procedure 16(b) governs the amendment of pleadings after the scheduling 

order deadline has passed. S&W Enters., LLC v. SouthTrust Bank of Ala., 315 

F.3d 533, 535–36 (5th Cir. 2003). “While Federal Rule of Civil Procedure 15(a) 

provides that leave to amend shall be ‘freely’ given, Rule 16(b)(4) limits 

modifications to a scheduling order to situations where good cause is shown.”

United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 328 (5th 

Cir. 2016). The good cause standard requires the “party seeking relief to show 

that the deadlines cannot reasonably be met despite the diligence of the party 

needing the extension.” S&W Enters., 315 F.3d at 535 (quoting 6A Charles 

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1522.1 (2d 

ed. 1990)). A court considers the following four factors when determining if 

good cause has been shown: “(1) the explanation for the failure to [timely move 

 

2 Gray also argues that Elliott was acting as PCCA’s agent when it sent the new 

contracts and cover letters to Gray, and thus PCCA is responsible for the statements made 

in the cover letters. Because we do not find that the cover letters create a genuine dispute of 

material fact as to whether PCCA repudiated the original contracts, we need not decide this 

issue. 

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for leave to amend]; (2) the importance of the [amendment]; (3) potential 

prejudice in allowing the [amendment]; and (4) the availability of a 

continuance to cure such prejudice.” Bias, 816 F.3d at 328 (alterations in 

original) (quoting S&W Enters., 315 F.3d at 536). 

Here, the district court denied Gray’s motion to amend the pleadings to 

join Elliott as a party and for a new scheduling order. Gray filed a motion for 

leave to amend almost eighteen months after this case was removed to federal 

court and less than two months before the date set for trial. Although Gray 

claimed the failure to request leave was due to PCCA’s late production of a 

document called the “Gin Agency Agreement,” the issue of whether Elliott was 

acting as an agent of either party was already a point of contention between 

the parties. Accordingly, we agree with the district court’s conclusion that Gray 

failed to meet his burden of showing good cause for leave to amend at such a 

late date. We thus hold the district court did not abuse its discretion in denying 

Gray’s motion for leave to amend the pleadings.

C. Attorneys’ Fees 

We review an award for attorneys’ fees for abuse of discretion. Mathis v. 

Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). Under Texas law3 a court may 

award “reasonable attorney’s fees from an individual or corporation, in 

addition to the amount of a valid claim and costs, if the claim is for . . . an oral 

or written contract.” Coffel v. Stryker Corp., 284 F.3d 625, 640 (5th Cir. 2002) 

(quoting Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 1997)). “The 

award of reasonable attorneys’ fees is mandatory under § 38.001 if the plaintiff 

prevails in his or her breach of contract claim and recovers damages.” Id.

 

3 Because “[s]tate law controls both the award of and the reasonableness of fees 

awarded where state law supplies the rule of decision,” Mathis, 302 F.3d at 461, the 

attorneys’ fee issue in this case is governed by Texas law.

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(citing Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 603, 613 (5th Cir. 

2000)). 

The district court awarded PCCA $92,901.95 in attorneys’ fees—

discounting the original amount sought by $3,175.00 due to the late production 

of the “Gin Agency Agreement.” In making its determination, the district court 

“review[ed] the lodestar amounts relevant in this case and the factors set forth 

in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 

1974),”4 and determined that, other than the amount it discounted, “the nature 

and extent of services supplied by Plaintiff’s attorneys justif[ied] the billed 

amount.” 

Gray argues first that PCCA made an excessive demand by claiming 

$221,746.50 in damages when it was only entitled to a liquidated amount of 

$40,700 and is therefore not entitled to any attorneys’ fees. See Findlay v. Cave, 

611 S.W.2d 57, 58 (Tex. 1981) (“A creditor who makes an excessive demand 

upon a debtor is not entitled to attorney’s fees for subsequent litigation 

required to recover the debt.”). Because Gray did not raise this argument until 

the response to the motion for attorneys’ fees, we find this argument waived. 

See Tuthill v. Sw. Pub. Serv. Co., 614 S.W.2d 205, 212 (Tex. Civ. App.—

Amarillo 1981, writ ref’d n.r.e.) (finding “excessive demand” waived where the 

appellees did not affirmatively assert the defense in their “live trial 

pleadings”); cf. United Servs. Auto. Ass’n v. Hayes, ___S.W.3d___, No. 01-14-

00133-CV, 2016 WL 4536333, at *10 (Tex. App.—Houston [1st Dist] Aug. 30, 

 

4 It appears that Texas law applies to this determination and thus that the district 

court should have considered the factors enumerated in Arthur Andersen & Co. v. Perry 

Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997), rather than those in Johnson. See

Fluorine on Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 866–67 (5th Cir. 2004). Because the 

analysis under both cases is so similar, however, this distinction does not change our 

conclusion. See Mid-Continent Cas. Co. v. Chevron Pipe Line Co., 205 F.3d 222, 232 (5th Cir. 

2000) (determining that it was unnecessary to determine whether the Johnson or Arthur 

Andersen factors governed in a diversity case because the analysis is comparable). 

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2016, no pet.) (affirming that an excessive demand challenge is preserved only 

where it is both pled as an affirmative defense and presented for fact finding 

as to its elements). 

Gray also argues that the attorneys’ fee award is unreasonable because 

the amount awarded ($92,901.95) far exceeds the damages obtained ($40,700)

and because PCCA received only a relatively small proportion of the damages 

it initially requested—it was awarded only $40,700, but initially sought 

$263,920.5 We disagree. Although our case law permits a court to reduce a fee 

award to reflect a party’s recovery in proportion to the damages it initially

claimed, it does not require a reduction as Gray contends. See Allstate Ins. Co. 

v. Plambeck, 802 F.3d 665, 679 (5th Cir. 2015) (concluding that proportionally 

discounting the attorneys’ fee award was not an abuse of discretion). Because 

of the extensive and unnecessary litigation of this same issue in Oklahoma 

state court in 2011, and given the district court’s careful consideration of “the 

nature and extent of the services” provided by PCCA’s attorneys—including 

the district court’s decision to discount the award for “inexplicably late 

production of the Gin Agency Agreement”—we hold that the district court did 

not abuse its discretion in awarding PCCA $92,901.95 in attorneys’ fees. 

III. CONCLUSION 

For the foregoing reasons, we AFFIRM the district court’s grant of 

summary judgment, its denial of Gray’s motion to amend the pleadings, and 

its award of $92,901.95 in attorneys’ fees to PCCA. 

 

5 PCCA initially sought $263,920 in damages then lowered its demand to $221,746.50.

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