IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30646

FISK ELECTRIC COMPANY, 

 Plaintiff – Appellee,

v.

DQSI, L.L.C., 

 Defendant – Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:15-CV-2315

Before KING, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

This appeal concerns the denial of a motion under Federal Rule of Civil 

Procedure 54(d) for attorneys’ fees and related costs. A subcontractor 

performed electrical work for a general contractor on a post-Hurricane Katrina 

federal construction project. The subcontractor later sued the general 

contractor in federal district court for fraudulently inducing it into entering a 

settlement agreement releasing the general contractor from liability under the 

 

* Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth 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 Fifth Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 2, 2018

Lyle W. Cayce

Clerk

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No. 17-30646

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Miller Act—a federal statute that requires general contractors to secure 

payment to subcontractors on most federal construction projects. In a related 

appeal, 17-30091, Fisk Electric Co. v. DQSI, L.L.C. et al., we reversed the 

district court’s grant of summary judgment to the general contractor, holding 

that there is a genuine issue of material fact on the subcontractor’s claim for 

fraudulent inducement into the settlement agreement. Here, the general 

contractor appeals from the district court’s judgment denying its postsummary-judgment motion for attorneys’ fees and related costs. Because we 

reversed and remanded for further proceedings in the related summaryjudgment appeal, we VACATE and REMAND in the instant appeal, as well. 

I.

DQSI, L.L.C., the general contractor here, contracted with the United 

States Army Corps of Engineers to perform work on a post-Hurricane Katrina 

pump station construction project. DQSI subcontracted with Fisk Electric 

Company; Fisk was to perform electrical work on the project. The subcontract 

allowed Fisk to assert claims for money damages for unforeseen delays not 

caused by Fisk. The project was delayed over a year, and Fisk sought delay 

damages. Fisk alleges it was never paid. 

After filing a lawsuit against DQSI, Fisk and DQSI entered into a 

settlement agreement. As part of the settlement, Fisk and DQSI agreed to 

various mutual releases of liability. In consideration of the releases, DQSI 

agreed to submit to the Corps a “Request for Equitable Adjustment” requesting 

delay damages on Fisk’s behalf. (As a subcontractor, Fisk had no direct 

relationship with the Corps.) Fisk contends that DQSI assured it that such a 

request was still viable and that, based on these representations, Fisk agreed 

to settle the lawsuit. According to Fisk, DQSI knew at the time of settlement 

that no such request for delay damages was possible because DQSI had 

previously waived Fisk’s right to seek the delay damages. Fisk sued DQSI and 

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DQSI’s surety to rescind the settlement agreement based on fraud and to 

recover delay damages under the Miller Act.1 Fisk also asserted breach of 

contract and unjust enrichment as alternative claims. 

The district court granted summary judgment to DQSI, holding that 

there was no genuine issue of material fact on the element of justifiable 

reliance in Fisk’s fraudulent-inducement claim. DQSI then requested an 

award of attorneys’ fees and related costs based on the subcontract under 

Federal Rule of Civil Procedure 54(d)(2), but the district court denied this 

motion.2 The district court first determined that the settlement agreement, 

not the subcontract, governed the current relationship between the parties. 

The district court then concluded that because the settlement agreement “does 

not allow for an award of attorneys’ fees,” DQSI’s motion for attorneys’ fees 

failed. In addition, the district court determined that Fisk’s lawsuit “was not 

baseless or vexatious and DQSI should not be awarded attorneys’ fees based 

on equity.” In light of “convincing evidence of questionable business practices 

that are against the public’s interest,” the district court denied DQSI an award 

of attorneys’ fees. Thereafter, DQSI timely appealed.

II.

“Awards of attorneys’ fees are generally reviewed for abuse of discretion, 

but application of the correct legal standard is reviewed de novo.” United 

States ex rel. Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 915, 

 

1 40 U.S.C. § 3131, et seq. “The Miller Act requires general contractors on most federal 

construction projects to furnish a bond for performance and to secure payment to all suppliers 

of labor and materials.” J.D. Fields & Co. v. Gottfried Corp., 272 F.3d 692, 696 (5th Cir. 

2001).

2 Rule 54(d)(2) concerns claims for attorneys’ fees and “related nontaxable expenses,” 

and generally requires a party to request such fees by motion. Fed. R. Civ. P. 54(d)(2)(A). By 

contrast, Rule 54(d)(1) concerns costs “other than attorney’s fees” and generally provides that 

these costs should be “allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1).

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918 (5th Cir. 1998). “Whether a party is a ‘prevailing party’ entitled to fees is 

a legal question that the court reviews de novo.” Tina M. v. St. Tammany Par. 

Sch. Bd., 816 F.3d 57, 59 (5th Cir.) (quoting Davis v. Abbott, 781 F.3d 207, 213 

(5th Cir. 2015)), cert. denied, 137 S. Ct. 371 (2016). We review a denial of 

attorneys’ fees provided by contract for abuse of discretion. McDonald’s Corp. 

v. Watson, 69 F.3d 36, 45 (5th Cir. 1995). “The district court abuses its 

discretion if it awards contractually-authorized attorneys’ fees under 

circumstances that make the award inequitable or unreasonable or fails to 

award such fees in a situation where inequity will not result.” Id. at 45–46. 

III.

“It is undisputed that attorneys’ fees can not be awarded in Miller Act 

claims absent an enforceable contract provision or evidence of bad faith.”

Varco Pruden Bldgs., 161 F.3d at 918; see also F.D. Rich Co. v. United States

ex rel. Indus. Lumber Co., 417 U.S. 116, 126–31 (1974). “The so-called 

‘American Rule’ governing the award of attorneys’ fees in litigation in the 

federal courts is that attorneys’ fees ‘are not ordinarily recoverable in the 

absence of a statute or enforceable contract providing therefor.’” F.D. Rich Co., 

417 U.S. at 126 (quoting Fleischmann Distilling Corp. v. Maier Brewing Co.,

386 U.S. 714, 717 (1967)). “[A]ttorney’s fees, as an element of damages, are a 

matter of substantive state law.” Gulf Union Indus., Inc. v. Formation Sec., 

Inc., 842 F.2d 762, 766 (5th Cir. 1988). Under Louisiana law, attorneys’-fee 

awards are allowed when authorized by statute or contract. See La., Dep’t of 

Transp. & Dev. v. Williamson, 597 So. 2d 439, 441 (La. 1992). “Where 

attorney’s fees are provided by contract, a trial court does not possess the same 

degree of equitable discretion to deny such fees that it has when applying a 

statute allowing for a discretionary award.” Cable Marine, Inc. v. M/V Trust

Me II, 632 F.2d 1344, 1345 (5th Cir. 1980). “Nevertheless, a court in its sound 

discretion may decline to award attorney’s fees authorized by a contractual 

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provision when it believes that such an award would be inequitable and 

unreasonable.” Id. 

Here, DQSI contends that there is an enforceable contract providing for 

an award of attorneys’ fees and related costs—the subcontract. Article 23(H) 

of the subcontract provides that the prevailing party in an action to enforce 

any provision of the subcontract or in an action alleging breach of the 

subcontract shall be entitled to reasonable attorneys’ fees, court costs, and 

costs of appeal.3 In its order denying an award of attorneys’ fees, the district 

court reasoned that “[e]ven though the lawsuit in question was based on an 

alleged violation of the subcontract, which allowed for attorneys’ fees, the 

Court’s Summary Judgment decision affirmed the validity of the parties[’]

previously reached settlement agreement.” Because it determined that the 

settlement agreement addresses all potential claims, does not provide for an 

award of attorneys’ fees, and is “the controlling agreement” between the 

parties, the district court concluded that DQSI was not entitled to an 

attorneys’-fee award. 

Because we reversed the grant of summary judgment to DQSI in the 

related appeal, Fisk may proceed to trial on its claim for rescission of the 

settlement agreement based on fraudulent inducement. DQSI is no longer a 

prevailing party at this stage of the litigation. See Tina M., 816 F.3d at 60

(stating that to be a prevailing party, a litigant must “receive at least some 

relief on the merits of his claim” (quoting Buckhannon Bd. & Care Home, Inc. 

v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001))). Given that

the district court denied DQSI an attorneys’-fee award in part because of its 

decision upholding the validity of the settlement agreement—and because of 

our determination in the related appeal that summary judgment was not 

 

3 The subcontract states that Louisiana law governs its provisions.

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warranted—any consideration of attorneys’ fees and related costs here is 

premature.4

Accordingly, we VACATE and REMAND to the district court for further 

proceedings. 

 

4 We do not hold that the district court abused its discretion in denying DQSI an award 

of attorneys’ fees after granting summary judgment to DQSI. The district court declined to 

award attorneys’ fees to DQSI in part because of “convincing evidence of questionable 

business practices that are against the public’s interest.” Even assuming arguendo that the 

subcontract’s provision regarding attorneys’ fees governed the relationship between Fisk and 

DQSI at the time of the district court’s order, “a court in its sound discretion may decline to 

award attorney’s fees authorized by a contractual provision when it believes that such an 

award would be inequitable and unreasonable.” Cable Marine, 632 F.2d at 1345 (affirming 

a decision denying plaintiff attorneys’ fees where plaintiff may have “incurr[ed] needless 

expense” by rejecting a generous settlement offer and continuing to pursue litigation). 

Moreover, the presumption that a prevailing party is entitled to costs does not extend to 

attorneys’ fees. Cf. Fed. R. Civ. P. 54(d)(1) (“Unless a federal statute, these rules, or a court 

order provides otherwise, costs—other than attorney’s fees—should be allowed to the 

prevailing party.” (emphasis added)). Compare 10 Charles Alan Wright et al., Federal 

Practice & Procedure § 2675 (3d ed.) (stating that “counsel fees ordinarily are not taxable as 

costs”), with 10 Charles Alan Wright et al., Federal Practice & Procedure § 2668 (3d ed.) 

(stating that “in most instances a person who succeeds in a lawsuit will be deemed a 

prevailing party and be entitled to have his or her costs paid by the losing party”). 

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