("Regardless whether the City pled offset, however, both parties addressed the issue in their pretrial motions in limine. Lubke was on notice of the City's position and suffered no prejudice by the absence of a formal initial pleading."), reh'g denied, 473 F.3d 571 (5th Cir. 2006); Giles v. General Electric, 245 F.3d 474, 492 (5th Cir. 2001) (concluding the plaintiff was not "unfairly surprised" where the affirmative defense was addressed in the pretrial order and the court held a hearing on the issue pretrial), with Morris v. Homco Int'l, Inc., 853 F.2d 337, 343 (5th Cir. 1988) (finding waiver where the district court raised an affirmative defense "in drafting its opinion months after trial"); Ingraham, 808 F.2d at 1078-80 (concluding the Government waived a statutory defense by raising it for the first time after trial). Directors contend that the district court's decision to allow in pari delicto "prejudiced" them because it led to the admission of circumstantial evidence in support of the defense that did not otherwise speak to the check-kiting scheme.
The subcontract between Kaiser and Shaw was a commutative contract making "the performance of the obligation of each party . . . correlative to the performance of the other," as well as a bilateral or synallagmatic contract in which "the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other." La. Civ. Code art. 1911 and rev. cmt. (b) (c); see Morris v. Homco International, Inc., 853 F.2d 337, 342 (5th Cir. 1988); SAUL LITVINOFF, 5 CIV. L. TREATISE § 15.12 (2d ed. 2001); ALAIN A. LEVASSEUR, PRECIS IN CONVENTIONAL OBLIGATIONS: A CIVIL CODE ANALYSIS 24 (Michie, 1980) ("A contract is commutative when a party considers that what he gives or does is the equivalent of what it will receive from the other party.")
The basic rule of contract remedies is that the plaintiff is to be put in the same position he would have occupied had the defendant performed his obligation. Morris v. Homco Int'l, Inc., 853 F.2d 337, 346 (5th Cir. 1988) (applying Louisiana law); Amoco Prod. Co. v. Texaco, Inc., 838 So.2d 821, 837 (La.App. 3d Cir. 2003). A plaintiff is not entitled to be put in a better position by recovering twice for the same harm.Morris, 853 F.2d at 346; Town of Winnsboro v. Barnard Burk, Inc., 294 So.2d 867, 882 (La.App. 2d Cir. 1974).
In re Katrina Canal Breaches Litig., 309 F. App'x 836, 838 (5th Cir. 2009) (quoting Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998)). "An issue or theory not even implicitly included in the pretrial order is barred unless the order is later amended 'to prevent manifest injustice.' " Morris v. Homco Int'l, Inc., 853 F.2d 337, 343 (5th Cir. 1988).
Bache, 827 P.2d at 819. In a case similar to the present one, Morris v. Homco Int'l, Inc. (5th Cir. 1988), 853 F.2d 337, the seller of a business brought suit to collect payments under the terms of a non-competition clause. Although the defendant buyer had not raised the issue of substantial performance in his counterclaim or in the pretrial conference, the court, in drafting its opinion a month after trial, injected the doctrine into the case to the defendant's benefit.
But even if the plaintiffs' other failings are not exceptionally clear, White does not contradict the principle that this court may affirm the judgment-here being the denial of an injunction-for reasons other than those that the district court gave. See, e.g., Morris v. Homco Int'l, Inc., 853 F.2d 337, 345 (5th Cir. 1988). "It is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court's judgment on any grounds supported by the record."
Failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case. Morris v. Homco Int'l, Inc., 853 F.2d 337, 342–43 (5th Cir.1988). A defendant must plead with “enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.”
Generally, we will not reverse unless "[a]n issue or theory [is] not even implicitly included in the pretrial order." Morris v. Homco Int'l, Inc., 853 F.2d 337, 342 (5th Cir. 1988). Here, it is true that the pretrial order did not explicitly state that the Bank was bringing a claim for civil conspiracy against Mock.
One purpose of the pre-trial order is to put the parties on notice as to the evidence they must be prepared to present. Morris v. Homco Int'l, Inc., 853 F.2d 337, 342 (5th Cir. 1988) ("The purpose of Rule 8(c), like the purpose of the requirement that the pretrial order contain all relevant claims and legal theories, is to inform the court and the parties how the case will be tried."). In Shell Oil v. MIT GILDA, 790 F.2d 1209 (5th Cir. 1986), we explained as follows:
Evidentiary "presumptions" which merely permit an adverse inference based on unproduced evidence are, likewise, controlled by federal law. See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1047 (5th Cir. 1990) (holding that federal law controlled the applicability of the "uncalled-witness rule"); Morris v. Homco Int'l, Inc., 853 F.2d 337, 341 (5th Cir. 1988) (stating that federal law controlled whether plaintiff was entitled to an evidentiary presumption that unproduced business records would have been detrimental to the defendant's case). Accordingly, federal law governs whether the district court abused its discretion in rejecting King's spoliation argument.