United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-10192 

____________ 

Partners & Friends Holding Corporation, 

Plaintiff—Appellant, 

versus

Cottonwood Minerals, L.L.C.; Longboat Energy, L.L.C., 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:22-CV-2502 

______________________________ 

Before Davis, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Partners & Friends sued to recover some of the $850,000 Cottonwood 

obtained in a title dispute related to oil and gas leases. The district court 

dismissed Partners’ claims with prejudice and awarded fees to Longboat. We 

affirm. 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 14, 2023 

Lyle W. Cayce 

Clerk 

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No. 23-10192 

2 

I. 

Longboat Energy, LLC, owns working interests in certain oil and gas 

leases (“the Disputed Acreage”). Longboat’s rights in the Disputed Acreage 

were clouded by a 2017 agreement with CCCB Energy Partners, LLC, so 

Longboat entered into a joint participation agreement with Partners & 

Friends (“Partners”) and two other entities. Partners agreed to fund 70% of 

the costs Longboat incurred resolving its title dispute with CCCB. In 

exchange, Longboat promised to make a good faith attempt to obtain clear 

title to the Disputed Acreage, to share with Partners a portion of its working 

interests in some of the wells, and to use part of any monetary recovery to 

pay down Partners’ share of the dispute resolution costs. 

Longboat then filed a lawsuit against CCCB, and the parties settled in 

August 2020. The settlement agreement provided Longboat and CCCB 

would cancel their 2017 agreement, freeing Longboat from any limitations on 

its rights in the Disputed Acreage. CCCB did not agree to pay Longboat any 

money. 

In the same 2020 settlement agreement, Cottonwood, LLC, a 

Longboat affiliate, resolved a separate dispute related to its interests in oil 

and gas leases owned by CCCB. Through the settlement, Cottonwood 

relinquished those interests to CCCB in exchange for $850,000. Partners 

apparently thought the settlement agreement obligated CCCB to pay 

$850,000 to Longboat (as opposed to Cottonwood), so it demanded 

Longboat turn over a portion of the payment in accordance with the joint 

participation agreement. Longboat refused, maintaining it received no money 

in the settlement and so had nothing to share. 

That answer did not satisfy Partners, so it filed this lawsuit. Partners 

presses three theories. First, Partners claims Longboat breached the joint 

participation agreement by withholding Partners’ share of CCCB’s 

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settlement payment. Second, Partners alleges Longboat fraudulently induced 

it to enter into the joint participation agreement by disingenuously promising 

to share monetary settlement proceeds. Lastly, Partners contends even if 

Longboat did not breach the agreement, Cottonwood is obligated to disgorge 

a portion of CCCB’s payment under the money had and received doctrine. 

Longboat and Cottonwood filed a motion to dismiss all three claims 

and attached the settlement agreement. The district court granted the 

motion in full. First, it held Partners’ breach of contract claim against 

Longboat failed because the agreement made clear Longboat did not recover 

any money in the settlement. Second, it held Partners’ fraudulent 

inducement claim against Longboat failed because Partners did not allege 

with particularity any fraudulent statement made by Longboat. Third, it held 

Partners’ equitable money had and received claim against Cottonwood failed 

because express contracts governed the relationships between all the relevant 

parties. Partners requested leave to amend its complaint in its response to 

defendants’ motion to dismiss, but the district court disregarded the request 

and dismissed Partners’ claims with prejudice. 

After the dismissal, Longboat moved for $115,475.50 in attorneys’ 

fees pursuant to a fee-shifting provision in the joint participation agreement. 

Partners conceded Longboat was entitled to a fee award, but it lodged various 

objections to the size of Longboat’s fee request. The district court generally 

rejected Partners’ challenges. But the district court agreed that Longboat 

impermissibly requested fees its attorneys incurred solely to defend 

Cottonwood, who was not a party to the joint participation agreement and so 

was not entitled to fee shifting. The district court reduced Longboat’s fees 

by 5% and entered an award for $109,701.72. 

Partners timely appealed the district court’s dismissal of its claims, its 

denial of Partners’ motion for leave to amend its complaint, and its fee award. 

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II. 

As always, jurisdiction is first. Partners appeals from the final decision 

of a district court, so we have jurisdiction under 28 U.S.C. § 1291. Two other 

jurisdictional issues merit discussion. 

First, because this case involves one or more LLCs and 28 U.S.C. 

§ 1332, we must ensure the parties properly established diversity jurisdiction 

in the district court. This is an evergreen problem in our circuit. See, e.g., 

MidCap Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 

2019) (quoting Settlement Funding, LLC v. Rapid Settlements, Ltd., 851 F.3d 

530, 536 (5th Cir. 2017) (emphasis added) (“[T]o establish diversity 

jurisdiction, a party ‘must specifically allege the citizenship of every member 

of every LLC.’”)); see also Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th 

Cir. 2001) (“[T]he party asserting federal jurisdiction must distinctly and 

affirmatively allege the citizenship of the parties.”) (quotations and 

alterations omitted). But here, Longboat and Cottonwood properly removed 

to federal court by alleging the citizenship of each of the LLCs’ members. 

Longboat and Cottonwood are Oklahoma citizens and Partners is a citizen of 

Wyoming and Florida. Defendants therefore established complete diversity. 

See In re Levy, 52 F.4th 244, 246 (5th Cir. 2022) (per curiam). 

Second, Partners filed only one notice of appeal, and that notice predated the district court’s fee-shifting order. Ordinarily, that would leave us 

without jurisdiction to consider its objections to the fee award. See Quave v. 

Progress Marine, 912 F.2d 798, 801 (5th Cir.), on reh’g, 918 F.2d 33 (5th Cir. 

1990). But Partners filed a docketing statement that clearly noticed its intent 

to appeal the fee order, and that served as the “functional equivalent” of a 

notice of appeal. Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 

(1988); see Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974) (“[T]he notice of 

appeal requirement may be satisfied by any statement, made either to the 

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district court or to the Court of Appeals, that clearly evinces the party’s 

intent to appeal.”); see also 1979 Advisory Committee Note, Fed. R. App. 

P. 3(c) (“[S]o long as the function of notice is met by the filing of a paper 

indicating an intention to appeal, the substance of the rule has been complied 

with.”). Accordingly, we may proceed to the merits of Partners’ objections 

to the fee award. See HCG Platinum, LLC v. Preferred Prod. Placement Corp., 

873 F.3d 1191, 1199 n.8 (10th Cir. 2017) (“[O]ur jurisdiction [to consider a 

post-judgment fee award] will not be defeated if other papers (like a docketing 

statement) . . . filed within the thirty-day time period for filing the notice of 

appeal provide the functional equivalent of what Rule 3 requires.” (quotation 

and citation omitted)). 

III. 

 We review de novo the district court’s Rule 12(b)(6) dismissal of 

Partners’ claims. See Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 

2003). Applying that standard, we (A) reject Partners’ breach of contract 

claim against Longboat. Then we (B) reject Partners’ fraudulent inducement 

claim against Longboat. Lastly, we (C) reject Partners’ money had and 

received claim against Cottonwood. 

A. 

Partners alleges Longboat breached the joint participation agreement 

by denying Partners a share of CCCB’s $850,000 settlement payment. But 

the settlement agreement makes clear CCCB agreed to pay Cottonwood, not 

Longboat. See ROA.184 (“CCCB shall pay Cottonwood the sum of Eight 

Hundred Fifty Thousand Dollars . . . .” (emphasis added)). The joint 

participation agreement obligated Longboat to remit to Partners a portion of 

any money Longboat recovered resolving its claims to the Disputed Acreage. 

Longboat did not breach by denying Partners a share of the money CCCB 

agreed to pay Cottonwood. 

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Partners presses three counterarguments. First, it contends we must 

accept its factual assertions about the contents of the settlement agreement. 

But the unambiguous text of the settlement agreement makes clear Partners’ 

breach of contract claim is not “plausible on its face.” See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). We are not bound by Partners’ assertion 

to the contrary. 

Second, Partners contends we may not consider the settlement 

agreement at this stage of the litigation. That argument fails for two reasons. 

First, Partners forfeited it by failing to object when Longboat attached the 

settlement agreement to its motion to dismiss. See Rollins v. Home Depot 

USA, 8 F.4th 393, 398 (5th Cir. 2021) (“We do not ordinarily consider issues 

that are forfeited because they are raised for the first time on appeal.”). 

Second, and in any event, the settlement agreement was properly before the 

district court (and ours) because it was referenced in Partners’ complaint and 

central to Partners’ claims. See In re Katrina Canal Breaches Litig., 495 F.3d 

191, 205 (5th Cir. 2007). 

Finally, Partners contends even if CCCB only agreed to pay 

Cottonwood, CCCB may have made extra-contractual payments to Longboat 

related to the settlement. But Partners made no such allegation in its 

complaint. Partners may not rely on allegations it did not make in its 

complaint to survive defendants’ motion to dismiss. See Moore v. Home Depot 

U.S.A., Inc., 2017 WL 5180431, at *3 (M.D. La. Nov. 8, 2017) (“[I]t is wellestablished that a party cannot rely on facts outside the complaint on a motion 

to dismiss.”) (citing Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 

2010)). 

B. 

 Partners next alleges Longboat fraudulently induced it to enter the 

joint participation agreement by disingenuously promising to share monetary 

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settlement proceeds.1 But Partners pleaded no facts establishing injury from 

this alleged misrepresentation. See Int’l Bus. Machines Corp. v. Lufkin Indus., 

LLC, 573 S.W.3d 224, 228 (Tex. 2019) (noting injury is an element of 

fraudulent inducement). As we have explained, Partners failed to state a 

claim that Longboat withheld settlement money. See supra Part III.A. Even 

assuming Longboat willfully misrepresented its intention to perform, 

Partners still got everything it bargained for under the joint participation 

agreement. Its fraudulent inducement claim accordingly fails. 

C. 

 Lastly, Partners asserts a money had and received claim against 

Cottonwood. “An action for money had and received arises when the 

defendant obtains money which in equity and good conscience belongs to the 

plaintiff.” Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El 

Paso 1997). Partners alleges Longboat received $850,000 in the settlement 

and then transferred it to Cottonwood, so Cottonwood holds money that 

belongs to Partners. This claim falters on the same ground as the others; 

Partners has not plausibly alleged Longboat recovered money in the 

settlement. Thus, Partners cannot demonstrate an equitable entitlement to 

money obtained by Cottonwood. 

IV. 

 Partners requested leave to amend its complaint in its response to 

Longboat’s motion to dismiss. See ROA.266 (“[S]hould the Court desire to 

grant the Motion, Plaintiff alternatively requests that it be given an 

_____________________ 

1

 Partners’ fraudulent inducement claim sounds in breach of contract. But under 

Texas law, a party can state a claim for fraudulent inducement in addition to breach when 

the breach is “coupled with a showing that the promisor never intended to perform under 

the contract.” Kevin M. Ehringer Enters., Inc. v. McData Servs. Corp., 646 F.3d 321, 325 (5th 

Cir. 2011) (citing Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)). 

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opportunity to amend its complaint before dismissal.”). The district court 

did not squarely address the request but implicitly denied it by dismissing 

Partners’ claims with prejudice. We review for abuse of discretion. See United 

States, ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 

(5th Cir. 2003).

The district court did not abuse its discretion. That is because 

Partners’ request for leave to amend was no more than a “bare request in an 

opposition to a motion to dismiss—without any indication of the particular 

grounds on which the amendment is sought.” Willard, 336 F.3d at 387 (5th 

Cir. 2003) (quotation and citation omitted). Such a request “does not 

constitute a motion within the contemplation of Rule 15(a),” so the district 

court had no obligation to justify its implicit denial. Id. (citation omitted). 

V. 

 The joint participation agreement between Partners and Longboat 

provides the prevailing party in any suit brought to enforce the agreement or 

“obtain any other remedy in respect of any breach of [the] agreement” is 

entitled to costs and reasonable attorneys’ fees. ROA.43–44. Partners 

brought claims arising out of the agreement and Longboat prevailed, so the 

district court awarded Longboat costs totaling $402 and fees totaling 

$109,701.72. We review for abuse of discretion. See Merritt Hawkins & 

Assocs., LLC v. Gresham, 861 F.3d 143, 155 (5th Cir. 2017). 

 Partners raises three objections to the fee award. First, it argues 

Longboat’s attorneys spent an unreasonable amount of time defending 

against the lawsuit. But Partners presents no evidence, and it is Partners’ 

burden to provide “specific evidence to overcome the presumptive 

reasonableness of the base lodestar figure.” Rohrmoos Venture v. UTSW DVA 

Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019). 

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Second, Partners contends the district court erred by awarding 

Longboat fees it incurred defending against Partners’ fraudulent inducement 

claim. In Partners’ view, Longboat may not recover these fees because 

Partners brought the fraud claim to impugn the validity of the joint 

participation agreement rather than to enforce it. But the joint participation 

agreement shifts fees for all suits “in respect of any breach of [the] 

agreement.” ROA.44 (emphasis added). “In respect of” is synonymous 

with “in respect to,” which means “in relation to.” Respect, Webster’s 

New International Dictionary 2122–23 (2d ed. 1934; 1950). 

Partners’ fraud claim depends on its breach claim, so the former undoubtedly 

relates to the latter. Longboat’s fees related to the fraud claim are therefore 

recoverable. 

Lastly, Partners contends the district court erred by awarding 

Longboat fees its attorneys incurred defending Cottonwood. But that is not 

what the district court did. Instead, it determined Longboat’s attorneys 

would have incurred 95% of the fees they requested even if Partners had not 

sued Cottonwood at all.2

 The court properly reduced Longboat’s fee request 

by 5% to ensure Partners was not forced to subsidize Cottonwood’s litigation 

costs. Any further reduction would have stripped Longboat of compensation 

it was otherwise entitled to recover under the joint participation agreement 

and Texas law. See Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 313–14 

(Tex. 2006) (noting parties may recover fees incurred for two intertwined 

claims even if only one claim is eligible for fee shifting). 

AFFIRMED. 

_____________________ 

2

 Partners does not argue this factual conclusion was clearly erroneous. 

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