Morris v. Homco Intern., Inc.

50 Citing cases

  1. Rogers v. McDorman

    521 F.3d 381 (5th Cir. 2008)   Cited 196 times
    Holding that "inpari delicto is an affirmative defense"

    ("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.

  2. Shaw Constructors v. ICF Kaiser Engineers, Inc.

    395 F.3d 533 (5th Cir. 2004)   Cited 322 times
    Holding that cross-motions for summary judgment "must be considered separately," and "each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law"

    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.")

  3. Brennan's Inc. v. Dickie Brennan Co.

    376 F.3d 356 (5th Cir. 2004)   Cited 94 times
    Holding expert testimony of hypothetical damages for breach of contract, based on putting plaintiff in position it would have occupied but for breach, is one proper measure of damages

    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).

  4. Baker v. City of McKinney

    624 F. Supp. 3d 668 (E.D. Tex. 2022)

    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).

  5. Nentwig v. United Industry

    845 P.2d 99 (Mont. 1992)   Cited 15 times
    In Nentwig v. United Industry, Inc. (1992), 256 Mont. 134, 139, 845 P.2d 99, 102-03, we cited with approval the holding of Manbeck v. Ostrowski (D.C. Cir. 1967), 384 F.2d 970, 975, cert. denied 390 U.S. 966, 88 S.Ct. 1077, 19 L.Ed.2d 1170 (1968):"

    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.

  6. Sambrano v. United Airlines, Inc.

    No. 21-11159 (5th Cir. Feb. 17, 2022)   Cited 24 times
    Finding “substantial likelihood of irreparable injury” of placing employees refusing Covid-19 vaccines on unpaid leave

    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."

  7. Lsref2 Baron, L.L.C. v. Tauch

    751 F.3d 394 (5th Cir. 2014)   Cited 83 times
    In Tauch, we affirmed the trial court's refusal to permit the defendant to raise a Louisiana setoff defense for the first time at the summary-judgment stage because proving entitlement to setoff "would require proof of additional facts beyond the face of the complaint."

    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.”

  8. Federal Land Bank Ass'n v. H H Worldwide

    354 F. App'x 85 (5th Cir. 2009)   Cited 1 times

    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.

  9. Doe v. Tangipahoa Parish

    494 F.3d 494 (5th Cir. 2007)   Cited 56 times
    Holding that the plaintiffs lack standing because "there is no evidentiary proof that any of the [plaintiffs] ever attended a school board session at which a prayer . . . was recited"

    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:

  10. King v. Illinois Cent. R.R

    337 F.3d 550 (5th Cir. 2003)   Cited 144 times
    Holding the plaintiff bears the burden to establish the defendant acted in bad faith and allowing the defendant to present evidence showing there was an innocuous explanation where documents subject to federally mandated retention were destroyed

    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.