* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 7, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20253

ALLIANZ VERSICHERUNGS, AG,

Plaintiff - Appellant,

versus

PROFREIGHT BROKERS INC., ET AL

Defendants,

PROFREIGHT BROKERS INC.,

Defendant - Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-2332

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

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM: *

Appellant Allianz Versicherungs, AG, appeals from a judgment

limiting its recovery from Profreight Bro kers, Inc. to fifty

dollars based on a contractual limitation of liabil ity. Allianz

asserted below that Profreight waived its contractual limitation of

liability defense because it did not plead it as an affirmative

defense pursuant to F ED

. R. C IV

. P. 8(c). Assuming Profreight’s

limitation of liability defense constituted an affirmative defenseNo. 03-20253

-2-

1 F ED

. R. C IV

. P. 8(c); Allied Chem. Corp. v. Mackay , 695 F.2d

854, 855-56 (5th Cir. 1983). subject to Rule 8(c), the magistrate judge found that the defense

was not waived because Allianz was not prejudiced by Profreight’s

late assertion of it.

On appeal, Allianz claims that the court erred by (1) finding

that Profreight’s failure to plead limitation of liability as an

affirmative defense did not result in waiver; (2) applying the

c ontractual limitation of liability to limit its damages because

the magistrate judge based the damage recovery on negligence, not

contract; (3) admitting a contract into evidence that , while

providing the same limitation of liability, was not the actual

contract governing the transaction at issue; (4) finding that

Allianz failed to present admissible and competent evidence of its

recoverable damages; and (5) granting Profreight’s bill of costs.

For the following reasons, we AFFIRM.

F ED

. R. C IV

. P. 8(c) provides that parties must plead all

affirmative defenses, and it is well-established that “[f]ailure to

follow this rule genera lly results in a waiver.” 1 This rule,

however, is not without exception: “Although failure to raise an

affirmative defense under rule 8(c) in a party’s first responsive

pleading ‘generally results in a waiver

. . . ., [w]here the matter

is raised in the trial court in a manner that does not result inNo. 03-20253

-3-

2 Giles v. General Elec. Co.

, 245 F.3d 474, 491-92 (5th Cir.

2001) (citing Allied Chem. Corp. , 695 F.2d at 855-56).

3 See Giles

, 245 F.3d at 492 (holding that no unfair surprise

could have resulted from a defense raised and heard “as a contested

issue of law in the joint pretrial order”). unfair surprise

. . . technical failure to comply precisely with

Rule 8(c) is not fatal.’” 2

Assuming without deciding that contractual limitation of

liability is an affirmative defense subject to F ED

. R. C IV

. P. 8(c),

Profreight’s failure to plead it did not result in waiver because

no prejudice to Allianz resulted. The facts do not support

Allianz’s contention that prejudice resulted because it was denied

the benefit of discovery and it incurred un necessary legal fees.

Profreight first raised this contention in its Joint Pretrial Order

on December 26, 2001, and trial occurred on March 18-19, 2002,

nearly three months later. The magistrate issued its final

judgment on February 11, 2003. The fact that Allianz had three

months to consider and prepare for the limitations defense and

adequate time after judgment to move to alter or amend the judgment

refutes Allianz’s assertion that it was prejudici ally surprised. 3

Moreover, the fact that the applicability of a contract provision

is a pure question of law belies Allianz’s assertion that it needed

more time for d iscovery. Finally, Allianz provides no authority

for its contention that a plaintiff can be prejudiced by incurring

more legal fees than it would have incurred if a defense fatal toNo. 03-20253

-4-

4 Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou

Furs Inc.

, 293 F.3d 912, 921 (5th Cir. 2002). Allianz’s contention

that it properly raised the argument below by “object[ing] to the

application of the limitation provision generally” is insufficient

to preserve error. To preserve error, a party must put a court on

notice regarding the substance of the issue. See Nelson v. Adams

USA Inc.

, 529 U.S. 460, 469 (2000) (“It is indeed the general rule

that issues must be raised in lower courts in order to be preserved

as potential grounds of decision in higher courts. But this

principle does not demand the incanta tion of particular words;

rather, it requires that the lower court be fairly put on notice as

to the substance of the issue.”). Although Allianz argued below

that (1) Profreight’s contract defense was waived because not

p leaded, (2) the contractual provision was invalid because not

bargained for, and (3) Profreight, as a broker, could not limit its

liability, Allianz never argued that it was improper for the court

to limit “extra-contractual” damages based on a contract provision.

As a result, the argument was not properly preserved for plenary

review.

5 United States v. Solis , 299 F.3d 420, 449 (5th Cir. 2002). its claim had been raised earlier. With these considerations in

mind, we hold that the defense was not waived.

Second, Allianz’s claim that the court erred by applying the

contractual limitation of li ability to damages based on

Profreight’s extra-contractual actions was not properly presented

b elow. Therefore, we review for plain error. 4 “Under a plain

error analysis, the court can correct an error not raised at trial

only if there is (1) error, (2) that is plain, and (3) that affects

the appellant’s subst antial rights, and further, if all three of

these conditions are met, the court may exercise its discretion to

notice the forfeited error only if (4) the error seriously affects

the fairness, integrity, or public reputatio n of judicial

proceedings.” 5 Under this standard, even if the court erred in

applying the contractual limitation, the error did not affectNo. 03-20253

-5-

6 Louisiana Bayou Furs Inc. , 293 F.3d at 921.

7 F ED

. R. C IV

. P. 46. substantial rights and seriously affect the fairness, integrity, or

public reputation of judicial proceedings.

Third, Allianz claims that the court erred by enforcing the

limitation of liabi lity because the contract was improperly

admitted into evidence, resultin g in insufficient evidence to

support the court’s application of the contract. These claims were

not properly raised b elow, and are therefore reviewed for plain

error. 6 Allianz concedes that it did not object to the contract’s

admission when it was offered, but contends that its later

objection to the contract as irrelevant is sufficient because the

contract’s inadmissibility was only established later during crossexamination. F E D

. R. C IV P. 46 makes clear that “if a party has no

opportunity to object to a ruling or order at the time it is made,

the absenc e of an objection does not thereafter prejudice the

party.” 7 The facts surrounding this case do not establish that

Allianz had no opportunity to object when the evidence was offered.

Allianz based its objection on the dates of the document, which

revealed that while the contract offered by Profreight may include

the same boilerplate limitation o f liability as the contract

gove rning the disputed transaction, it was not the specific

contract at i ssue. The date of the offered contract appeared on

its face, and the date of the actual transaction was undisputed.

The grounds for the objection were not “revealed” during cross-No. 03-20253

-6-

8 Allianz’s actions also violated Local Rule 46 of the

Southern District of Texas, requiring t hat “[o]bjections to

admissibility of exhibits must be made at least three business days

before trial by notifying the Court in writing of the disputes,

with copies of the disputed exhibit and authority.”

9 See Bak er v. Bowen , 839 F.2d 1075, 1081, (5th Cir. 1988);

see also 10 James Wm. Moore et al., Moore’s Federal Practice ¶

54.101[3] (3d ed. 1998) (“[T]he prevailing party is the party in

whose favor judgment was entered, even if that judgment does not

fully vindicate the litigant’s position in the case.”). examination and Allianz cannot now seek plenary review. 8 Because

any error did not affect substantial rights and seriously affect

th e fairness, integrity, or public reputation of judicial

proceedings, there is no plain error.

Allianz next argues that the district court erred in rejecting

its evidence of recoverable damages. However, we need not consider

t his issue because the contract’s limitation of liability clause

limits Allianz’s recovery to fifty dollars.

Finally, Allianz claims that the court erred by awarding costs

to Profreight as a prevailing party under Fed. R. Civ. P. 54(d)(1).

The “prevailing party” determination is a clear, mechanical one;

when a judgment is entered in favor of a party, it is the

prevailing party. 9 Given that the court entered judgment for

Allianz, it is the prevailing party, and Profreight is not entitled

to costs under Fed. Rule Civ. P. 54(d)(1).

AFFIRMED in part, and REMANDED for consideration of Allianz’s

costs.