*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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60715

GREENVILLE IMAGING, LLC

Plaintiff-Appellant-Cross-Appellee

v.

WASHINGTON HOSPITAL CORPORATION, doing business as The King’s

Daughters Hospital

Defendant-Appellee-Cross-Appellant

Appeals from the United States District Court

for the Northern District of Mississippi

(05-CV-137)

Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant, Greenville Imaging, LLC (Imaging), appeals the

district court’s judgment, after a bench trial, denying its claim for compensatory

damages for a breach of contract committed by defendant-appellee, Washington

Hospital Corporation (WHC). WHC cross-appeals the award of attorneys’ fees

and costs to Imaging and the denial of its own fee request. Following a bench

trial, we review findings of fact for clear error and legal conclusions de novo.

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2008

Charles R. Fulbruge III

Clerk
1The original entity that contracted with WHC was Imaging Resources, LLC, but it

later assigned the contract to Greenville Imaging, LLC. Imaging Resources initially joined

Greenville Imaging in filing this suit but voluntarily dismissed its claims before trial.

2

Lehmann v. GE Global Ins. Holding Corp., 524 F.3d 621, 624 (5th Cir. 2008). As

this is a diversity case and the parties have agreed that Mississippi law will

govern any disputes arising under the contract, we apply the substantive law of

Mississippi. Erie R.R. v. Tompkins, 58 S.Ct. 817, 822 (1938). Because state law

supplies the rule of decision, it also controls the award of attorneys’ fees. Mathis

v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). 

Imaging is a magnetic resonance imaging (MRI) company based in

Greenville, Mississippi. Imaging entered into an MRI service agreement with

WHC in which WHC agreed to employ Imaging to satisfy all of WHC’s “mobile

MRI needs” at WHC’s King’s Daughters Hospital (KDH) campus for a four-year

period.1 The agreement was a requirements contract with no minimum number

of scans to be performed and with payment to be made on a per scan basis. The

agreement contained a successor clause mandating that WHC “require any

successor . . . to expressly assume and agree to perform [WHC’s] duties and

responsibilities pursuant to this Agreement.” The contract also included two

provisions relating to attorneys’ fees and costs. Section 7.9 stated that in any

contract dispute, “the prevailing party will be entitled to reimbursement of its

expenses, including court expenses and lawyers’ fees.” Section 8.3 provided that,

in the event of a breach, “the defaulting party shall pay the other part[y’s]

reasonable attorney’s fees together with an amount equal to all expenses paid

or incurred in the enforcement of any rights or privileges hereunder.”

Approximately seven months into performance of the contract, WHC sold

nearly all of its assets to Delta Regional Medical Center (DRMC), another

Greenville hospital which was a competitor of WHC’s. Despite WHC’s efforts to
2A fixed MRI unit is one that is permanently housed in a single medical facility,

whereas a mobile MRI unit is contained in a trailer that can be moved from place to place. 

The expert witness for Imaging admitted that the terms of the agreement did not prevent

WHC, and therefore any successor, from meeting any and all of its MRI needs with its own

fixed unit before utilizing Imaging’s mobile unit.

3

comply with the successor clause, DRMC refused to assume the MRI service

agreement as part of the purchase, believing that its own fixed MRI unit had

sufficient capacity to absorb whatever new demand would be created by its

acquisition of KDH.2 Undeterred, WHC went ahead with the sale. WHC

subsequently informed Imaging that its services were no longer required and

requested that Imaging promptly remove all of its mobile MRI equipment from

KDH premises.

Imaging sued WHC for breach of contract based on WHC’s failure to assign

the MRI service agreement to DRMC. The district court found that WHC had

breached the contract, but it declined to award any compensatory damages to

Imaging. The district court found that, even if WHC had assigned the MRI

service agreement to DRMC as required, DRMC had no need for Imaging’s

mobile MRI services. The district court found that DRMC’s own fixed unit was

capable of handling all of its MRI requirements, therefore DRMC would have

had no need to engage Imaging’s services even if it had assumed the contract.

Nevertheless, the district court did charge WHC with attorneys’ fees and costs

as the “defaulting party” pursuant to section 8.3 of the contract.

Imaging argues that the district court committed legal error by

mischaracterizing its burden of proof in this case. The district court required

Imaging to prove damages by showing that DRMC would have had a need for

Imaging’s services had it assumed the contract. This was not error. The remedy

for breach of contract is to place the party in the position it would have occupied

had the contract been performed. Theobald v. Nosser, 752 So. 2d 1036, 1042
3We reject WHC’s arguments that it did not breach the contract and that the

provision in question is invalid under Mississippi law. There is no evidence that WHC ever

offered DRMC to make any reduction in the purchase price (which provided WHC a large

profit), or make any other compensating adjustment in proposed sale, if DRMC would

assume the contract with Imaging, or that any such offer would have been futile. Nor was

WHC under any compulsion to sell. The evidence certainly does not compel the conclusion

that the assumption provision in the WHC-Imaging contract was invalid as an illegal or

4

(Miss. 1999). It is therefore entirely reasonable to require a plaintiff suing on

a needs-based contract with no minimum requirements to show that the other

contracting party had a need for the plaintiff’s services. As the chief witness for

Imaging admitted at trial, if no need existed, then Imaging lost no revenues and

incurred no damages.

Furthermore, we determine that the district court did not commit clear

error when it found that DRMC did not have a need for Imaging’s mobile MRI

services. Imaging asserts that DRMC’s needs were dictated by the demands of

patients in the Greenville community. Imaging relies on its own market

analysis to contend that the needs of the community exceeded the capacity of

DRMC’s fixed unit. WHC presented the testimony of DRMC’s director of

radiology and chief operating officer indicating that, to the contrary, DRMC had

excess capacity in its fixed unit. Therefore, according to DRMC’s employees,

who, unlike Imaging’s witnesses, had no economic interest in the suit, DRMC

was able to accommodate all of its patients from KDH and the community at

large without using Imaging’s mobile MRI services. Based on these statements

and the speculative nature of Imaging’s evidence, the district court did not

commit clear error in finding that DRMC had no need for Imaging’s services.

We also find thatthe district court did not abuse its discretion in awarding

Imaging attorneys’ fees and costs. Although Imaging was unable to prove

damages, Imaging did establish that WHC breached the MRI service

agreement.3 Thus, the district court properly charged WHC with attorneys’ fees
unreasonable restraint on alienation or that WHC’s failure to comply therewith was

excused (or excusable) under the contract’s general force majeure clause. 

5

and costs as the “defaulting party” under section 8.3 of the contract. WHC

argues that the evidence Imaging presented in regard to attorneys’ fees was

untimely and insufficient. We disagree. The district court specifically requested

that Imaging submit a post-trial affidavit outlining its fees and expenses. WHC

made no objection to that procedure, and Imaging complied with it, submitting

an affidavit. When WHC subsequently objected to the sufficiency of that

affidavit, Imaging timely responded with an adequately detailed affidavit. Thus,

the award of attorneys’ fees to Imaging was reasonable and proper. 

WHC also contends that it should have been awarded attorneys’ fees and

costs, because Imaging’s failure to obtain compensatory damages rendered WHC

the “prevailing party” under section 7.9 of the contract. Even assuming

arguendo that WHC was the “prevailing party,” this argument has no merit.

WHC breached the agreement, and a party who violates a contract cannot then

enforce that same contract to its benefit. LeBleu v. Jim Murphy & Assoc., Inc.,

557 So. 2d 526, 528 (Miss. 1990); Matheney v. McClain, 161 So. 2d 516, 520

(Miss. 1964). Thus, the district court did not abuse its discretion in denying

WHC’s request for attorneys’ fees and costs.

The judgment of the district court is

AFFIRMED.