author: STEPHEN A. HIGGINSON, Circuit-Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ephesian Johnny FRANKLIN, Defendant-Appellant.
    No. 15-20622
    United States Court of Appeals, Fifth Circuit.
    FILED September 28, 2016

      Andrew R. Gould, Renata Ann Gowie, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Scott. Andrew Martin, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit-Judge:

Defendant-Appellant Ephesian Johnny Franklin pleaded guilty to being a felon in possession of a firearm. Franklin appeals the mental health program special condition of his supervised release. We VACATE the mental health program special condition and REMAND to the district court for resentencing.

I.

On October 8, 2014, a grand jury returned a one-count indictment charging Franklin with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Franklin pleaded guilty, and was sentenced to thirty months in prison and twenty-four months of supervised release. One special condition imposed on Franklin during his supervised release required him "to participate in a mental health program as deemed necessary and approved by the probation officer.” Franklin appeals this mental health condition of his supervised release, arguing primarily that it is ambiguous as to the scope of the district court’s delegation of authority to the probation officer.

II.

“A defendant has a constitutional right to be present at sentencing.” United States v. Bigelow, 462 F.3d 378, 380-81 (5th Cir. 2006) (alteration omitted) (quoting United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003)). Accordingly, when a district court’s written judgment conflicts with its oral pronouncement of the sentence, the oral pronouncement controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). We normally review for abuse of discretion the imposition of a special condition of supervised release. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). However, if a defendant fails to object to the special conditions when they are announced at sentencing, we review for plain error. See, e.g., United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010); United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009), Nonetheless, when a defendant appeals a supervised release condition alleging ambiguity between the written judgment and the oral pronouncement, we review, for abuse of discretion if the defendant “had no opportunity at sentencing to consider, comment on, or object to the special conditions later included in the written judgment.” Bigelow, 462 F.3d at 381; see also United States v. Calhoun, 471 Fed.Appx. 322, 323 (5th Cir. 2012) (unpublished).

Franklin asks us to apply the abuse of discretion standard of review, while the Government argues for plain error review. During sentencing, the district court provided the following oral pronouncement on mental health treatment: “And I’m recommending mental health treatment if needed while in custody and after during supervised release.” The court’s written judgment read, in relevant part: “The defendant is required to participate in a mental health program as deemed necessary and approved by the probation officer.” Here, as was the case in United States v. Lomas, 643 Fed.Appx. 319 (5th Cir. 2016) (unpublished),' it is a close question whether the district court’s oral pronouncement provided Franklin with the requisite “ ‘opportunity at sentencing to consider, comment on, or object to’ the version of the mental-health condition that the district court ultimately imposed.” Id. at 324 (quoting Bigelow, 462 F.3d at 381).

The district court stated that it was only “recommending mental health treatment if needed.” A recommendation is not a mandate, as the Government points out, and it is possible that this statement should have alerted Franklin to the possibility that the district court was leaving the decision of his mental-health treatment to the -Probation Office. Yet, nowhere in the district court’s oral pronouncement did it ever mention the Probation Office or a probation officer, much less define the probation officer’s role as it did in its written judgment. As we said in Lomas, “it is hard to see how [Franklin] could have objected at sentencing to the wording of the condition—the basis of, his challenge on appeal—when he did not encounter that wording until he received his written judgment.” Id.-, see also Calhoun, 471 Fed. Appx. at 322-23. Further complicating our analysis, the phrase “if needed” in the district court’s oral pronouncement could either modify “while in custody” only, or both “while in custody” and “after during supervised release.” In an abundance of caution, we will review Franklin’s mental health special condition for abuse of discretion.

While probation officers have broad power “to manage aspects of sentences and to supervise probationers and persons on supervised release with respect to all conditions imposed by the court,” those powers are limited by Article III of the United States Constitution. United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995). “The imposition of a sentence, including the terms and conditions of supervised release, is a ‘core judicial function’ that cannot be delegated.” Lomas, 643 Fed.Appx. at 324 (quoting Johnson, 48 F.3d at 808). While “a district court may properly delegate to a probation officer decisions as to the ‘details’ of a condition of supervised released] .., a court impermis-sibly delegates judicial authority when it gives a probation officer ‘authority to decide whether a defendant will participate in a treatment program.’ ” Id, (internal citations omitted).

Without reaching Franklin’s constitutional claim, we conclude—as we have in several similar cases—that the district court’s “written judgment creates an ambiguity regarding whether the district court intended to delegate authority not only to implement treatment but to decide whether treatment was needed.” Calhoun; 471 Fed.Appx. at 323; see also, e.g., Lomas, 643 Fed.Appx. at 324-25; United States v. Turpin, 393 Fed.Appx. 172, 174 (5th Cir. 2010) (unpublished); United States v. Vasquez, 371 Fed.Appx. 541, 542-43 (5th Cir. 2010) (unpublished); United States v. Lopez-Muxtay, 344 Fed.Appx. 964, 965-66 (5th Cir. 2009) (unpublished).

For the aforementioned reasons, we VACATE the mental health program special condition and REMAND to the district court for resentencing, with the same clarifying instruction we offered in Lomas, 643 Fed.Appx. at 325 (quoting United States v, Peterson, 248 F.3d 79, 85 (2d Cir. 2001)):

If the district court intends that the therapy be mandatory but leaves a variety of details, including the selection of a therapy provider and schedule to the probation officer, such a condition of probation may be imposed. If, on the other hand, the court intends to leave the issue of the defendant’s participation in therapy to the discretion of the probation officer, such a condition would constitute an impermissible delegation of judicial authority and should not be included.

      . The Government argues, alternatively, that the invited-error doctrine applies here. We disagree. The invited-error doctrine provides that “[a] defendant may not complain on appeal of errors that he himself invited or provoked the [district] court ... to commit." United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (first alteration added) (quoting United States v. Wells, 519 U.S. 482, 487-88, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (parallel citation omitted)). We narrowly construe counsel’s statements in applying the invited error doctrine. See United States v. Parajon, 178 Fed.Appx. 348, 349 (5th Cir. 2006) (unpublished). While it is true that defense counsel zealously advocated for Franklin, including a discussion of mental health and possible treatment options, defense counsel did not ask that the decision of whether Franklin needed mental health treatment be made by the probation officer.

      . Given an abuse of discretion standard of review, the parties agree that a remand to the district court for resentencing is the appropriate remedy.


source: Caselaw Access Project

author: JENNIFER WALKER ELROD, Circuit Judge:

license: Public Domain

text:
    Marguerite HOFFMAN, Plaintiff-Appellee Cross-Appellant v. L & M ARTS, Defendant-Appellant Cross-Appellee David Martinez; Studio Capital, Incorporated, Defendants-Appellees. Marguerite Hoffman, Plaintiff-Appellant v. David Martinez; Studio Capital, Incorporated; L & M Arts, Defendants-Appellees.
    No. 15-10046
    Cons. w/ 15-10293
    United States Court of Appeals, Fifth Circuit.
    FILED September 28, 2016

      Frederick Bartlett Wulff, Sr., Koning Rubarts, L.L.P., Dallas, TX, Mary Eaton, Dan Cogan Kozusko, Roger David Netzer, Willkie Farr ,& Gallagher, L.L.P., New York, NY, for Plaintiff-Appellee Cross-Appellant.
    Harry Paul Susman, Susman , Godfrey, L.L.P., Houston, TX, Tibor L. Nagy, Jr., Dontzin Nagy & ■ Fleissig, L.L.P., New York, NY, David Dean Shank, Esq., Scott, Douglass & McConnico, L.L.P., Austin, TX, for Defendant-Appellant Cross-Ap-pellee.
    Jonathan I. Blackman, David H. Her-rington, Cleary Gottlieb Steen & Hamilton, L.L.P., New York, NY, Kurt Allen Schwarz, Esq., Jackson Walker, Gordon M. Shapiro, L.L.P., Dallas, TX, for Defendants-Appellees David Martinez and Studio Capital, Incorporated.
    Before DENNIS, ELROD, and GRAVES, Circuit Judges.
   JENNIFER WALKER ELROD, Circuit Judge:

This appeal arises out of the sale and public re-sale by auction of a well-known Mark Rothko painting. The painting’s original owner, Marguerite Hoffman, argues that she was fraudulently induced into selling the painting with assurances of secrecy and that the eventual public re-sale of the painting constituted a breach of a confidentiality provision in her agreement with the original buyer. For the reasons described below, we AFFIRM the district court’s grant of summary judgment for defendant L & M Arts on Hoffman’s fraudulent inducement claim,' AFFIRM the district court’s judgment as a matter of law for defendants David Martinez and Studio Capital, Inc., on Hoffman’s breach-of-contract claim, REVERSE the district court’s denial of judgment as a matter of law for L & M on Hoffman’s breach-of-contract claim, and AFFIRM the district court’s denial of Hoffman’s motion for attorney’s fees under Texas Civil Practice & Remedies Code § 38.001(8). The case is REMANDED for ■ proceedings consistent with this opinion.

I. Background

Dallas arts patron Marguerite Hoffman purchased Mark Rothko’s Untitled 1961 (“the Red Rothko”) in 1998. Hoffman later bequeathed the Red Rothko to the Dallas Museum of Art, of which she was a major supporter, and it hung there from November 2006 through April 2007 as part of an exhibit called “Fast Forward” that showcased future additions to the museum’s collections. The painting had been publicly associated with Hoffman on the front page of the Dallas Morning News and in other media. Nevertheless, in the wake of her husband’s death in 2006, Hoffman decided to sell the Red Rothko. Although the sale was permitted under the terms of the bequest, Hoffman was eager to avoid the publicity that would likely result from a public sale and decided to sell the Red Rothko privately.

For help finding a buyer, Hoffman and family friend John Van Doren reached out to Robert Mnuchin, a long-time friend and an expert in the market for Rothkos. Mnu-chin, along with Dominique Levy, was the co-principal of defendant L & M Arts, an art gallery. Through Van Doren, Hoffman conveyed to L & M her concern for confidentiality. To maintain the secrecy of the sale, Mnuchin agreed to approach only a single buyer and'assured Van Doren that the buyer would be an individual.

L & M approached defendant David Martinez, an art collector, to discuss purchasing the Red Rothko. On several previous occasions, both Levy and Mnuchin had transacted with Martinez. Martinez would acquire art sometimes on his own behalf and-other times on behalf of Studio Capital, a Belize corporation with which he was involved. From L & M’s perspective when transacting with Martinez, he and Studio Capital were one and the same.

Martinez’s and Studio Capital’s identities remained undisclosed to Hoffman, but Mnuchin assured Van Doren that the buyer was a “very private” “single individual” and that the painting would' “disappear” into that buyer’s collection based in Europe. In early 2007, Martinez flew with Levy to Dallas to view the Red Rothko, which was still hanging in the Dallas Museum of Art. Negotiations began over the sale, with L & M communicating offers and counteroffers back and forth between Van Doren and Martinez.

The parties eventually agreed to a sale price of $17.6 million (excluding commissions) and memorialized the terms of the sale in a February 2007 letter agreement (“the February Agreement”). The agreement contained a specific confidentiality provision, which provided that “[i]t is the specified wish of the seller that the sale and terms of the sale remain confidential,” and that “[i]t is requested that confidentiality be maintained indefinitely.” In March 2007, however, Christie’s auction house contacted Hoffman to discuss her plans to sell the Red Rothko. Christie’s had learned the Red Rothko was for sale because Martinez, in the midst of negotiations, had consulted with the chairman of Christie’s International for his advice on an appropriate price. Hoffman immediately canceled the sale and conveyed to Martinez and Studio Capital (“the Martinez defendants”) and to L & M her sense that there had been a breach of confidentiality.

• In April 2007, Van Doren and Mnuchin executed a new letter agreement for the sale of the Red Rothko (“the Agreement”). The Agreement reflected the same sale price as the February Agreement, $17.6 million excluding commissions, but differed from the February Agreement in two notable respects. First, the Agreement contained several new commitments by the buyer: to anonymously donate $500,000 to the Dallas Museum of Art on behalf of an entity of Hoffman’s choosing; to allow Hoffman to retain possession of the painting for six months after closing; and to refrain from hanging or displaying the painting for an additional six months thereafter. Second, the Agreement contained modified confidentiality language: “All parties agree to make maximum’ efforts to keep all aspects of this transaction confidential indefinitely.” The entire Agreement fit on a single page.

The Agreement closed, Martinez paid the purchase price, and title for the Red Rothko passed from Hoffman to Studio Capital. As agreed, the painting remained in Hoffman’s possession for six months and was subsequently shipped to Studio Capital. After attempting to privately resell the Red Rothko with the aid of L & M for a year spanning March 2009 to March 2010, Martinez moved the Red Rothko to L & M’s gallery in New York and decided to sell it at public auction at Sotheby’s. L & M shipped the Red Rothko to Sotheby’s on Martinez’s instructions. During this time and until May 15, 2010—three days after it was ultimately auctioned—the Red Rothko was the subject of a consignment agreement between Studio Capital and L & M that entitled L & M to possess it.

In May 2010, the Red Rothko appeared on the cover of the Sotheby’s catalog. The catalog entry for the Red Rothko, as to which L & M had input with Sotheby’s, referenced the “Fast Forward” exhibit at the Dallas Museum of Art .that had been dedicated to Hoffman and two other benefactors. The entry specifically referenced pages in the “Fast Forward” exhibit catalog that contained pictures of Hoffman and her late husband posing in front of the Red Rothko and of the Red Rothko hanging in their home. In the lead-up to the auction, an art blogger referenced the Red Rothko’s previous appearance in the “Fast Forward” exhibit and named the exhibit’s three benefactors, including Hoffman.

Mnuchin reached out to Hoffman in mid-March 2010 and informed her of the impending auction. Through Van Doren, Hoffman asked Mnuchin if she could buy back the painting and was rebuffed. On May 12, 2010, Sotheby’s auctioned the Red Rothko for approximately $81 million, including commissions.

Hoffman sued the Martinez defendants and L & M for breach of contract in Texas state court in May 2010, and the defendants removed the case to federal court shortly thereafter based on diversity. The defendants moved to dismiss, arguing in part that there had been no breach because the confidentiality provision in the Agreement governed disclosures about the terms of the 2007 private sale, but not about the fact of the sale itself. In denying the motion, the district court held that the confidentiality provision was enforceable as a best-efforts clause, and that the fact of the sale was among the “aspects of the transaction” that the parties were obligated to make best efforts to keep confidential.

At the conclusion of discovery, all defendants moved for summary judgment, arguing that there was insufficient evidence of breach and no triable issue on damages. In denying. summary judgment, the district court specifically upheld Hoffman’s proposed damages measure based on an “auction premium” theory. Per the district court, the value of the allegedly breached confidentiality provision—ie. the benefit of the bargain that Hoffman did not receive—could be measured by “the difference between $17.6 million [the sale price in the Agreement excluding commissions] and what the painting would have sold for at public auction on or around April 24, 2007.”

The district court later granted Hoffman leave to amend her complaint. Hoffman’s ensuing Third Amended Complaint added a claim against L & M for fraudulent inducement, alleging that L & M had misrepresented “that L & M had made the undisclosed buyer aware of her concerns and of the terms of both contracts, that the undisclosed buyer was an individual and not an institution, and that the Red Rothko would ‘disappear’ into that individual’s very private European collection.” The district court allowed a new round of summary judgment motions and subsequently granted summary judgment for L & M on Hoffman’s fraudulent inducement claim. In the same order, the court denied the defendants’ motion for summary judgment on damages, upholding Hoffman’s auction-premium theory of damages “as a matter of law.”

A jury trial took place on Hoffman’s remaining breach-of-contract claims against each defendant. The jury found all three defendants liable and answered three different damages questions. Question 3(A) asked for “[t]he difference, if any, between the sum of money for which Hoffman sold the painting in the transaction in question and what she could have sold the painting-for at public auction on or around April 24, 2007,” and the jury answered $500,000. Question 3(B) asked for “[t]he difference, if any, between the value of the benefits Hoffman conveyed under the contract to the defendant in question and the value of the benefits she received in exchange,” and the jury answered $0 as to each defendant. Question 3(C) asked for “[t]he value of the benefits that the defendant in, question received in connection with the transaction,” and the jury answered $450,000 as to L & M and $750,000 as to the Martinez defendants. Hoffman requested that she be allowed to combine the amounts submitted in response to each question, but the district court denied that request and instead granted Hoffman’s alternate election of the damages awarded under Question 3(C).

The defendants filed Rule 50(b) motions. The district court granted judgment as a matter of law for the Martinez defendants, holding that there was insufficient evidence that L & M had authority to bind them in the Agreement. The district court denied judgment as a matter of law for L & M, rejecting its arguments that there was insufficient evidence to support a jury verdict as to breach, causation, and damages. Finally, the court determined that Hoffman’s elected remedy under Question 3(C) reflected impermissible disgorgement damages, but that Hoffman could recover benefit-of-the-bargain damages under Question 3(A) instead. Hoffman moved under Rule 59(e) to amend the judgment accordingly, and the district court granted the motion. L- & M filed a second Rule 50(b) motion re-asserting its previous arguments, and the district court denied the motion in a summary order. Hoffman moved for attorney’s fees, from L & M under -Texas Civil Practice & Remedies Code § 38.001(8), and the district court denied the motion based on an Erie guess that the Supreme Court of Texas would not consider an LLC like L & M to be “an individual or corporation” under § 38.001(8).

L & M appeals the district court’s denial of its motion for judgment as a matter of law against Hoffman on her breach-of-eon-tract claim, arguing that there was insufficient evidence of breach and causation to support a jury verdict and that the jury award reflected an invalid measure of damages. Hoffman cross-appeals, challenging: the grant of summary judgment for L & M on her fraudulent inducement claim; the district court’s rejection of her chosen contract damages remedy under Question 3(C); the denial of her motion for attorney’s fees; and the grant of judgment as a matter of law for the Martinez defendants on her breach-of-contract claim.

II. Analysis

A. Fraudulent Inducement Claim

We begin with Hoffman’s appeal of the district court’s order granting summary judgment for L & M on Hoffman’s fraudulent inducement claim. This court reviews grants of summary judgment de novo, assessing whether there is a genuine dispute as to any material fact, viewing the evidence in the light most favorable to the non-movant. Miller v. Metrocare Servs., 809 F.3d 827, 831-32 (5th Cir. 2016) (citing Fed. R. Civ. P. 56(a)). We follow the district court and'the parties in assuming that Hoffman’s fraudulent inducement claim is governed by Texas law.

Under Texas law, the elements of fraudulent inducement are: “a misrepresentation; that defendant knew the representation was false and intended [to] induce plaintiff to enter into the contract through that misrepresentation; that plaintiff actually relied on the misrepresentation in entering into the contract; and that plaintiffs reliance led plaintiff to suffer an injury through entering into the contract.” Bohnsack v. Varco, L.P., 668 F.3d 262, 277 (5th Cir. 2012). Hoffman grounds her fraudulent inducement claim in three asserted misrepresentations by L & M: (1) that L & M possessed authority to sign the Agreement on behalf of Studio Capital, the then-undisclosed buyer; (2) that the buyer of the Red Rothko was an individual; and (3)that the Red Rothko would “disappear” into the undisclosed buyer’s “very private” “European collection.” We conclude that Hoffman has not shown, as to any of these three asserted misrepresentations, that a genuine dispute of material fact exists regarding each element of Texas fraudulent inducement.

1. The “Agency” Misrepresentation

Hoffman’s first asserted misrepresentation by L & M is that L & M had authority to enter into the Agreement on behalf of Studio Capital. The district court disregarded this theory of liability as unplead-ed, reasoning that Hoffman’s Third Amended Complaint “nowhere allege[d] that L & M misrepresented that it possessed authority to sign the [Agreement] on behalf of Studio Capital.” We find no error in this decision.

“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005). Accordingly, a district court considering a defendant’s motion for summary judgment does not err by disregarding a theory of liability asserted in the plaintiffs response that was not pleaded as required by the applicable pleading standard. De Franceschi v. BAC Home Loans Servicing, L.P., 477 Fed.Appx. 200, 204 (5th Cir. 2012). A plaintiff alleging a state-law fraudulent inducement claim is subject to Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. Shandong Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029 (5th Cir. 2010); Dorsey v. Port folio Equities, Inc., 540 F.3d 333, 338-39 (5th Cir. 2008).' “This Court interprets Rule 9(b) strictly, requiring a plaintiff pleading fraud to specify the statements contended to be fraudulent ... and explain why the statements were fraudulent.” Herrmann Holdings, Ltd. v. Lucent Techs, Inc., 302 F.3d 552, 564-65 (5th Cir. 2002).

Hoffman failed to plead with adequate specificity that L & M fraudulently induced her to enter into the Agreement by misrepresenting its authority to act on behalf of the buyer. In arguing to the contrary, Hoffman highlights the following factual allegations in her Third Amended Complaint:

68. When plaintiff entered into the Contract, she understood that L & M was entering into the Contract on behalf of and with the knowledge of the undisclosed buyer, an individual. Plaintiffs understanding was based on L & M’s representation that it was entering into the Contract on the undisclosed buyer’s behalf. She understood that L & M was keeping, and would continue to keep, the undisclosed buyer aware of her concerns and of the commitments the undisclosed buyer was making in the Contract.
69. L & M’s representations to that effect were false in multiple respects.
70. Although L & M was authorized to act and was acting- as their agent, neither Martinez nor Studio Capital had been advised that L & M was entering into the Contract. L & M had not made and did not make Studio Capital or Martinez aware of the confidentiality commitment contained in the Contract. Indeed, L & M did not make Studio Capital or Martinez aware of the Contract for more than three years, and not before March 15, 2010.

Hoffman nowhere alleges—either in these paragraphs or elsewhere in her pleadings—that L & M’s representation of its authority to act on behalf of the undisclosed buyer was false. Paragraph 68 lists several representations by L & M, including that it had authority to bind the buyer; Paragraph 69 alleges that the representations listed in Paragraph 68 “were false in multiple respects”; and Paragraph 70 identifies the respects in which the representations were false. Not only does Paragraph 70 not highlight as false L & M’s representation of its authority—to the contrary, Paragraph 70 acknowledges it to be true: “L & M was authorized to act and was acting as [the Martinez defendants’] agent.” Because Hoffman' did not adequately plead that L & M fraudulently induced her to enter into the Agreement by falsely representing its authority to act on behalf of the buyer, the district court did not err in granting summary judgment for L &■ M on that theory of liability.

2. The “Individual” Misrepresentation

Hoffman’s second asserted misrepresentation by L & M is that the undisclosed buyer on whose behalf L & M negotiated the Agreement was an “individual.” The district court determined that L & ‘M was entitled to summary judgment on this theory of liability because Hoffman had failed to create a genuine dispute as to whether this alleged misrepresentation caused her any injury. We agree.

Hoffman’s losses in this case, if any, arose after the Agreement was executed and in effect. In a Texas fraudulent inducement case based on a misrepresentation of fact whose falsity leads to losses after the contract is executed, typically only consequential damages are recoverable. See Fazio v. Cypress/GR Houston I, L.P., 408 S.W.3d 390, 394-95 (Tex App.— Houston [1st Dist.] 2013, pet. denied) (en banc). Consequential damages in a fraudulent inducement case must be “foreseeable and directly traceable to the fraud and result from it.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 49 n.1 (Tex. 1998). Accordingly, “Subsequent losses ... are recoverable only if the misrepresentation is a producing cause of the loss.” Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 817 (Tex. 1997); accord Blue Gordon, C.V. v. Quicksilver Jet Sales, Inc., 444 Fed.Appx. 1, 10-11 (5th Cir. 2011) (“[I]t is not sufficient to show that [the plaintiff] would not have entered into the Agreement if [the defendant] had not made the alleged misrepresentations or nondisclosures; that allegation goes to the element of. reliance. Rather, [the plaintiff] must show that [the defendant’s] misrepresentations or nondisclosures caused the injury [the plaintiff] suffered.”).

Hoffman has not created a genuine dispute that any losses were directly traceable to Studio Capital being a corporate entity rather than an individual. Hoffman’s asserted injuries resulted, from alleged breaches of confidentiality, and the district court determined that “a reasonable jury could not find from the summary judgment evidence that the ability or inclination of an entity to comply with [the confidentiality provision] was materially different from that of an individual.” We agree, and Hoffman does not challenge this determination on appeal.

Hoffman instead argues that she is excused from showing any nexus between L & M’s alleged misrepresentation and her asserted injury because she seeks equitable rescission and disgorgement, remedies for which she argues no such nexus must be shown. Hoffman forfeited this argument by omitting it from her brief in opposition to summary judgment—an omission expressly noted by the district court. Because Hoffman showed no nexus between her asserted injuries and L & M’s alleged misrepresentation that the buyer was an “individual,” the district court did not err in granting summary judgment for L & M on that theory of liability.

3. The “Disappear” Misrepresentation

Hoffman’s third asserted misrepresentation by L & M is Mnuchin’s statement that the Red Rothko would “disappear” into the undisclosed buyer’s “very private European collection.” L & M argues that summary judgment on this theory of liability should be affirmed because, inter alia, the “disappear” statement was not an actionable representation. We agree.

A representation of fact can constitute actionable fraudulent inducement only if it “(1) admits of being adjudged true or false in a way that (2) admits of empirical verification.” Presidio Enters., Inc. v. Warner Bros. Distributing Corp., 784 F.2d 674, 679 (5th Cir. 1986). “Pure expressions of opinion are not representations of material fact, and thus cannot provide a basis for a fraud claim.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337-38 (Tex. 2011). Because “[a] prediction, or statement about the future, is essentially an expression of opinion,” future predictions are generally not actionable. Presidio Enters., 784 F.2d at 679, 680. In rare cases, a prediction of future events can be “so intertwined with” “direct representations of present facts” as to be actionable. Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex. 1983). In addition, “[a]n expression of an opinion as to the happening of a future event may ... constitute fraud where the speaker purports to have special knowledge of facts that will occur or exist in the future.” Id. at 930; see also Italian Cowboy Partners, 341 S.W.3d at 338 (“Special or one-sided knowledge may help lead to the conclusion that a statement is- one of fact, not opinion.”).

The “disappear” statement is a non-ae-tionable prediction of future events. The statement, as understood by both Hoffman and L & M, reflected L & M’s opinion, based in part on its knowledge of the buyer’s identity, that the buyer probably would not generate publicity for the Red Rothko. As Hoffman understood it, the statement “meant' she would 'not hear of the Red Rothko again.” Whether that prediction came true depended on the actions of a third party, the buyer, which Hoffman should have known was not within L & M’s predictive powers, notwithstanding that L & M knew the buyer’s identity. This is not a case in which one party’s “[s]peeial or one-sided knowledge” warrants treating an opinion as actionable. Italian Cowboy Partners, 341 S.W.3d at 338; see also Presidio Enters., 784 F.2d at 682 (“The ‘special knowledge’ exception applies typically to the opinions of specialized experts— such as jewelers, lawyers, physicians, scientists, and dealers in antiques—where their opinions are based on concrete, specific information and objective, verifiable facts.”); Restatement (Second) of Torts § 542 cmt. f Westlaw (database updated June 2016).

Though the “disappear” statement incorporated falsifiable facts—that the buyer was an “individuar’ with a “European collection”—these facts were not so intertwined with L & M’s prediction as to make the entire statement actionable. The link between a fact as to which the defendant has special knowledge and a statement of opinion must be much .closer for the opinion to be actionable. For instance, in the leading Texas case in this area, the defendant had sold lots in a subdivision ■ after predicting to the buyer that a nearby trailer park would soon relocate. As the Supreme Court of Texas explained:

[The defendant’s] representation was not merely an expression of opinion that the trailer park would be moved in the future. He falsely .represented that the trailer park had been sold, and that notices had been given to the tenants. These are direct representations of present facts which are so intertwined with his future prediction that the whole statement amounts to a representation of facts.

Trenholm, 646 S.W.2d at 930-31. The undisclosed buyer’s status as an individual with a European collection had far less bearing, if any, on whether the Red Rothko would indeed “disappear.”

Because L & M’s statement that the Red Rothko would “disappear” into the buyer’s very private European collection was not an actionable statement of material fact, the district court properly granted summary judgment for L & M on this theory of liability.

B. Breach-of-Contract Claim

We turn next to L & M’s appeal of the judgment in favor of Hoffman on her breach-of-contract claim. After the jury found L & M and the Martinez defendants liable for breaching the confidentiality clause of the Agreement and answered three separate damages questions, the district court denied L <& M’s Rule 60(b) renewed motion for judgment as a matter of law. The court ruled that Hoffman had presented evidence from which a reasonable jury could conclude that the Agreement’s confidentiality clause was breached. The district court also ruled that, although the jury’s damages award of $1.2 million in response to Question 3(C) on the verdict form reflected an unavailable disgorgement remedy, the jury’s award of $500,000 in response to Question 3(A) reflected legally viable benefit-of-the-bargain damages. The district court accordingly granted Hoffman’s subsequent Rule 69(e) motion, awarding her $500,000 in an amended judgment.

“[This court] review[s] de novo the district court’s denial of a motion for judgment as a matter of law, applying the same standards as the district court.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013). Judgment as a matter of law is appropriate where “a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party on that issue.” Fed. R. Civ. P. 50(a). Likewise, “[t]o the extent that a [Rule 59(e) ] ruling was a reconsideration of a question of law, ... the standard of review is de novo.” Potts v. Chesapeake Exploration, L.L.C., 760 F.3d 470, 473 (5th Cir. 2014) (quoting Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 721-22 (5th Cir. 2013)). Because L & M’s appeal presents purely legal questions concerning the interpretation of a contract and the validity of various damages measures, our review is de novo,

1. Breach

L & M first argues that it is entitled to judgment as a matter of law on Hoffman’s breach-of-contract claim because the.evidence did not support a finding that the confidentiality clause, properly construed, had been breached. The confidentiality clause provided that “All parties agree to make maximum effort to keep all aspects of this transaction confidential indefinitely.” All of the allegedly breaching acts—including the Martinez defendants’ public auction of the Red Rothko, L & M’s failure to stop the auction, and L & M’s contributions to the auction catalog—violated confidentiality, if at all, by potentially revealing that Hoffman had previously sold the Red Rothko and was no longer its owner. In determining whether any of those acts violated the confidentiality clause, we are therefore presented with a pure question of contract interpretation: whether the “aspects of th[e] transaction” that the parties agreed to keep confidential included the fact of the transaction itself. The district court concluded that the fact of the transaction was covered by the confidentiality clause; we conclude that it was not.

“Under Texas law, ‘[t]he primary concern of a court construing a written contract is to ascertain the true intent of the parties as expressed in the instrument.’ ” Gonzalez v. Denning, 394 F,3d 388, 392 (5th Cir. 2004) (quoting Nat. Union Fire Ins. Co. of Pittsburgh, 907 S.W.2d 517, 520 (Tex. 1995)). “To determine the parties’ intent, we examine the express language of their agreement.” Americo Life, Inc. v. Myer, 440 S.W.3d 18, 22 (Tex. 2014). Though we understand the parties’ chosen language “in light of the facts, and circumstances surrounding the contract’s execution,” our consideration of any extrinsic evidence is “subject to the limitations of the parol-evidence rule.” Id.; accord Tex. Bus. & Com. Code § 2A.202 (Terms included in an integrated writing “may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement but may be explained or supplemented ... by course of dealing or usage of trade or by course of performr anee.”). “In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls.” Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 n.25 (Tex. 2011) (citation omitted).

The language of the Agreement indicates that the confidentiality clause does not require secrecy as to the fact of the sale. By its own terms, the confidentiality clause requires maximum effort to keep secret “all aspects of th[e] transaction.” References to an object’s “aspects” generally describe features of the object rather than the object itself. See The American Heritage Dictionary of the English Language (5th ed. 2016) (defining “aspect” as “[a] characteristic or. feature of something”). As most naturally understood, the fact that the 2007 sale occurred is not an “aspect” of that transaction subject to the confidentiality clause.

Other provisions of the Agreement also indicate that the confidentiality clause does not require secrecy as to the fact of the 2007 sale. Immediately after the confidentiality clause, the Agreement provided: “In addition, the buyer agrees not to hang or display the work for six months following receipt of the painting.” This specific, express prohibition on displaying the Red Rothko for a fixed period of time “raises an inference,” per “[t]he maxim expressio unius est exclusio alterius,” that the parties did not intend to forbid the buyer from displaying the painting once that fixed period had passed. CKB Assocs., Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655-56 (Tex. 1987); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107-11 (2012) (describing expressio unius canon of interpretation). The possibility of the new owner’s displaying the Red Rothko once six months had passed indicates that the parties did not intend that maximum efforts be undertaken to keep the fact of the 2007 sale confidential indefinitely. A public (or even private) display would likely fall short of “maximum effort” to keep changed ownership confidential.

Our examination of “the facts and circumstances surrounding the [Agreement’s] execution,” including “the commercial ... setting in which the contract was negotiated,” Houston Exploration Co., 352 S.W.3d at 469 (quoting 11 Richard A. Lord, Willi-ston on Contracts § 32.7 (4th ed. 1999)), confirms that the fact of the 2007 sale was not among the “aspects of the transaction” as to which the parties promised confidentiality. The first version of the contract to which the parties agreed—the February Agreement—expressly required “that the sale and the terms of the sale remain confidential.” The February Agreement’s explicit requirement of confidentiality as to “the sale” itself suggests that the absence of any reference to the sale in the final Agreement’s confidentiality clause was intentional. In addition, the jury heard testimony from Dominique Levy that resale restrictions, whether they prohibit resale at public auction or any resale at all—are “usually spelled out very explicitly” in the art industry and typically apply for a fixed period of time or within a fixed geographical territory. Hoffman herself has even employed an express resale restriction on at least one occasion. Both the parties’ prior dealings and evidence of industry norms suggest that resale restrictions are usually explicit.

One additional consideration leads us to read the confidentiality provision not to require secrecy as to the fact of the 2007 sale. Where a contract could be read to contain a promissory restraint on alienation, Texas courts “prefer a construction of a possible restraint so that there is no such result.” Crestview, Ltd. v. Foremost Ins. Co., 621 S.W.2d 816, 826 (Tex. App.— Austin 1981, writ ref d n.r.e.) (citing Restatement (First) of Property § 418 (1944)).

Under Hoffman’s reading, the confidentiality provision permanently prevented the public sale of the Red Rothko and significantly constrained how Studio Capital could conduct even a future private sale. On that reading, the confidentiality provision constituted an indirect promissory restraint on alienation and accordingly would be void if unreasonable. See Restatement (Second) of Property § 3.3 Westlaw (database updated June 2016) (“The terms of a donative transfer of an interest in property which seek to impose a contractual liability on one who makes a later transfer of that interest constitute a promissory restraint on alienation.... ”); Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 633 S.W.2d 811, 814-15 (Tex. 1982) (focusing on creation of contractual liability, even where future disposition is not expressly prohibited). Given that the confidentiality clause required “maximum effort” and applied “indefinitely,” its reasonableness as a restraint on alienation would be tenuous at best. Cf. Mattern v. Herzog, 367 S.W.2d 312, 319-20 (Tex. 1963) (holding that a promissory restraint on alienation was not void as unreasonable because it was limited to a reasonable period of time rather than indefinite). Accordingly, we resolve any lingering doubt against the confidentiality clause’s application to the fact of the 2007 sale so as to avoid reading it as a potentially unreasonable restraint on the alienation of property.

- 'These indicators confirm what the language of the Agreement already makes clear: the confidentiality clause did not require secrecy as to the fact of the 2007 sale, and the jury therefore did not hear evidence from which it could reasonably have found that L & M breached the Agreement. We accordingly hold that L & M was entitled to judgment as a matter of law on Hoffman’s breach-of-contract claim.

2. Damages

Even were we to conclude that a reasonable jury could have found that L & M breached the agreement, L & M would nevertheless be entitled to judgment as a matter of law because the jury’s damages award rested on a legally non-viable measure of damages. The district court determined that the jury’s answer to Question 3(C), which asked for “[t]he value of the benefits that [each defendant] received in connection with the transaction,” reflected a disgorgement remedy that the Supreme Court of Texas would not endorse in a breach-of-contract case. The court instead awarded Hoffman $500,000 in damages based on the jury’s answer to Question 3(A), which asked for “[t]he difference, if any, between the sum of money for which Hoffman sold the painting in the transaction in question and what she could have sold the painting for at public auction on or around April 24, 2007.” The parties have referred to Question 3(A) as encapsulating an “auction premium” theory of the value of the confidentiality clause, and the district court held as a matter of law that the “auction premium” question reflected legally valid benefit-of-the-bargain damages, L & M challenges this determination.

“Ordinarily, when a court concludes that there has been a breach of contract, it enforces the broken promise by protecting the expectation that the injured party had when he made the contract.” Restatement (Second) of Contracts § 344 cmt. a Westlaw (database updated June 2016). Accordingly, “contract damages serve to give a plaintiff the benefit of his bargain, i.e., to place the plaintiff in the position he would have occupied if the contract had been performed.” Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Tex.), L.P., 449 S.W.3d 474, 479 (Tex. 2014). Typical contract damages calculate the benefit of the bargain by subtracting the value.of the performance actually received by the non-breaching party from the value of the performance contracted for. See Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 454 (5th Cir. 2001). Where the dollar value of the contracted-for performance is difficult to ascertain, a benefit-of-the-bargain jury question can permissibly use the value of the non-breaching party’s performance as a proxy in appropriate circumstances. See Jerry Parks Equipment Co, v. Southeast Equipment Co., 817 F.2d 340, 343 (5th Cir. 1987). In all circumstances, however, a benefit-of-the-bargain damages question must encapsulate the difference between what was bargained for and what was received. Restatement (Second) of Contracts § 347.

Question 3(A) did not properly encapsulate the lost benefit of Hoffman’s bargain. Because the parties agree that the defendants performed all of their duties under the Agreement with the exception of the duty of confidentiality, a proper benefit-of-the-bargain question should have captured the value to Hoffman of the performance of that duty, standing alone. Instead, Question 3(A) measured the difference “between the sum of money for ivhich Hoffman sold the painting in the transaction in question and what she could have sold the painting for at public auction on or around April 24, 2007,” the date the Agreement was signed, (emphasis added). Because “a hypothetical, speculative bargain that was never struck and would not have been consummated” cannot serve as a baseline for benefit-of-the-bargain damages, it is far from clear that the hypothetical auction value of the Red Rothko is an appropriate proxy for the performance that Hoffman bargained for. Formosa, Plastics, 960 S.W.2d at 50. But even assuming away that problem, “the sum of money for which Hoffman sold the painting” does not reflect the performance she actually received. Rather, under the Agreement Hoffman received not only a sum of money—$17.6 million after commissions—but also several other commitments from Studio Capital, Specifically, Studio Capital committed to and actually did: (1) make a $500,000 contribution to the Dallas Museum of Art; (2) allow Hoffman to keep possession of the Red Rothko for six months after the sale; and (3) refrain from hanging or displaying the Red Rothko for an additional six months thereafter. Because Question 3(A) did not subtract these elements of the performance that Studio Capital delivered, it failed to isolate the value of the confidentiality clause.

Nor did the damages awarded in Question 3(C)—which the district court discarded and which Hoffman asks us to reinstate—reflect a -proper measure of contract damages. Question 3(C) asked for “[t]he value of the benefits that [each defendant] received in connection with the transaction.” The district court concluded that Question 3(C) elicited a disgorgement remedy and made an Erie guess that the Supreme Court of Texas would not allow a disgorgement remedy for a breach-of-contract claim. We agree.

In Texas, “[t]he universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained.” CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 278 (5th Cir. 2009) (citation omitted). Though benefit-of-the-bargain damages are not the only proper measure of the plaintiffs losses, the other permissible measures—including reliance and restitution damages— also focus squarely on the plaintiffs actual losses. Wes-Tex Tank Rental, Inc. v. Pioneer Natural Res. USA, Inc., 327 S.W.3d 316, 320 n.4 (Tex App.—Eastland 2010, no pet.); see also Restatement (Second) of Contracts §§ 344, 370. Unlike these permissible damages remedies, equitable disgorgement focuses on divesting the wrongdoer of its ill-gotten gains rather than making the victim whole. SEC v. Huffman, 996 F.2d 800, 802 (5th Cir. 1993).

Because Question 3(C) asked for “the value of the benefits that [each defendant] received” rather than the value of the benefits conferred on each defendant by Hoffman, we hold that- it reflected a disgorgement remedy that the Supreme Court of Texas would reject. Several Texas intermediate courts have, held disgorgement to be an unavailable remedy under Texas contract law. See, e.g., Henry v. Masson, 333 S.W.3d 825, 849 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Bancservices Group, Inc. v. Strunk & Assocs., L.P., No. 14-03-00797-CV, 2005 WL 2674985, at *6 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (mem. op.). We have also previously commented that, “[i]n Texas, unjust enrichment is based on quasi-contract and is unavailable when a valid, express contract governing the subject matter of the dispute exists.” Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 454 (5th Cir. 2001).

Against these authorities, Hoffman highlights section 39 of the Restatement (Third) of Restitution and Unjust Enrichment, which “describes a disgorgement remedy” in the event of a profitable opportunistic breach. Cmt. a. Hoffman also notes that the Supreme Court of the United States recently endorsed a disgorgement remedy for breach of an agreement between two states as a matter of federal common law, with extensive reference to section 39 of the Restatement. Kansas v. Nebraska, — U.S. -, 135 S.Ct. 1042, 1056-58, 191 L.Ed.2d 1 (2015). Nevertheless, given Texas courts’ singular focus on compensating a plaintiff for its losses, we conclude that the Supreme Court of Texas would not follow this approach in a Texas breach-of-contract case, at least absent a fiduciary relationship between the parties.

Because neither Question 3(A), on which the district court awarded judgment for Hoffman, nor Question 3(C), on which Hoffman seeks to recover, awarded a legally valid measure of damages for any breach of the Agreement by the defendants, we conclude that the defendants are entitled to judgment as a matter of law even if such a breach occurred.

III. Conclusion

We AFFIRM the district court’s grant of summary judgment for L & M on Hoffman’s fraudulent inducement claim, AFFIRM the district court’s judgment as a matter of law for the Martinez defendants on Hoffman’s breach-of-contract claim, REVERSE the district court’s denial of judgment as a matter of law for L & M on Hoffman’s breach-of-contract claim, and AFFIRM the district court’s denial of Hoffman’s motion for attorney’s fees under Texas Civil Practice & Remedies Code § 38.001(8). The case is REMANDED for proceedings consistent with this opinion.

      . The exact relationship between Martinez and Studio Capital is a matter of some dispute among the parties.

      . The alleged breach of the February Agree- • ment's confidentiality provision is not the subject of this lawsuit. It is included here as background.

      . Before the district court, L & M argued that New York law applied to Hoffman’s fraudulent inducement claim but maintained that the district court did not need to decide at the summary judgment stage whether New York or Texas law applied. Thus, the district court applied Texas law,

      . In a corollary argument, Hoffman asserts that L & M misrepresented that it would inform the buyer of the terms of the Agreement, including the confidentiality provision, and that L & M did not disclose to Hoffman that it had failed to do so. In its summary judgment brief to the district court, L & M argued that this theory of fraudulent inducement failed for lack of evidence of intent and causation, and these points were not rebutted in Hoffman’s response brief. The district court’s summary judgment order did not address Hoffman’s failure-to-disclose theory of fraudulent inducement and we deem Hoffman to have forfeited it.

      . Because the jury foünd zero difference “between the value of the benefits Hoffman conveyed under the contract to [each defendant] and the value of the benefits she received in exchange,” Hoffman suffered no losses ascertainable at the time the Agreement was executed.

      . A broader range of remedies is available— including out-of-pocket damages and benefit-of-the-bargain damages—when damages from a misrepresentation of fact can be ascertained at the time of the transaction. See Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 817 (Tex. 1997). Out-of-pocket and benefit-of-the-bargain damages are also available when the claim is based on a fraudulent promise to perform that is broken post-sale. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 49-51 (Tex. 1998).

      . Arthur Andei'sen & Co. was decided under the Texas Deceptive Trade Practices Act, but its discussion of common law recovery for fraud has been cited in Texas fraudulent inducement cases. See, e.g., Formosa Plastics, 960 S.W.2d at 49; Fazio, 403 S.W.3d at 395.

      . Though Hoffman did address her entitlement to rescission and disgorgement, she failed to argue that seeking these remedies excused the absence of a nexus between the alleged misrepresentation and her asserted injuries, despite L & M having argued that this absence was fatal to her claim. As the district court observed, Hoffman did "not argue that the availability of these remedies enables her to establish that she was injured by the misrepresentation that the buyer was an individual.”

      . Because L & M was arguably negotiating on behalf of the undisclosed buyer, its statement that the Red Rothko would disappear into the buyer's very private collection may have amounted to a promise of future performance, over which L & M’s principal had direct control, rather than a mere prediction as to which L & M had superior knowledge but not direct control. A promise of future performance “made with no intention of performing at the time it was made" can substantiate a claim for fraudulent inducement. Formosa Plastics, 960 S.W.2d at 48. Nevertheless, neither Hoffman nor L & M treats the “disappear” statement as a promise of future.performance, and we follow suit.

      . Hoffman argues in a footnote that the district court failed to analyze her fraudulent inducement claim as it was actually pleaded by not considering all three asserted misrepresentations together, examining their effects in the aggregate. We deem this argument forfeited as inadequately briefed. See United States v. McMillan, 600 F.3d 434, 457 n.75 (5th Cir. 2010). In any event, were we to consider all three representations in the aggregate, our analysis would not change regarding any of the elements of fraudulent inducement as to which Hoffman has failed to show a genuine dispute.

      . The district court granted the Martinez defendants' Rule 50(b) motion, ruling that there was no evidence from which a reasonable jury could conclude that L & M had actual or apparent authority to bind the Martinez defendants to the Agreement, Because we hold that there was no compensable breach of the Agreement, we need not address whether the Agreement bound L & M and the Martinez defendants or only L & M.

      . Both L & M and Hoffman apply Texas law to Hoffman’s breach-of-contract claim. L & M , asserts in a footnote that Hoffman’s breach-of-contract claim, is governed by New York law—a point it preserves for purposes of its argument on attorney’s fees—but proceeds to apply Texas law throughout its briefs, recognizing that Texas law and New York law are •materially alike with respect to the substantive contract law issues raised in L & M’s appeal.

      . The parties dispute whether displaying the Red Rothko would necessarily reveal its 'changed ownership, but that dispute misses the point. Because of the confidentiality clause's strong "maximum effort” language, publicly displaying the Red Rothko would likely constitute a breach if the- fact of sale is an "aspect of the transaction” that must be kept confidential, even if changed ownership would not necessarily be revealed.

      . Because we hold that there was no com-pensable breach of the Agreement, we need not address Hoffman’s argument on cross-appeal that she is entitled to prevailing party attorneys' fees under section 38.001(8) of the Texas Civil Practice and Remedies Code. However, we note that an intervening decision by the Court of Appeals of Texas supports the district court’s Erie guess that an LLC like L & M is not "an individual or corporation” under section 38.001(8). See Choice! Power, L.P. v. Feeley, No. 01-15-00821-CV, — S.W,3d-,-, 2016 WL 4151041, at *10 (Tex. App. Aug. 4, 2016) (interpreting "corporation” in section 38.001(8) to refer specifically to incorporated entities rather than generally to all businesses).

      . Hoffman argues that the jury heard evidence from which it could have concluded that these commitments from Studio Capital were not bargained-for performance but rather punishment for its previous breach of secrecy in connection with the February Agreement. This argument fails for two reasons. First, some of the trial testimony that Hoffman highlights actually supports the opposite conclusion: that the additional commitments were "offered to [her] as—as an incentive for [her] to reconsider the sale"—in other words, they were bargained for. Second, Question 3(A) did not leave the jury free to decide whether the additional .commitments were part of Studio Capital's bargained-for performance; rather, it expressly called for the jury to subtract only "the sum of money” that Hoffman received under the Agreement.

      . If anything, the jury's award of exactly $500,000 in response to Question 3(A) suggests that it may have been specifically taking into account the $500,000 that Studio Capital agreed to contribute to the Dallas Museum of Art and might have been willing to pay to Hoffman instead in a hypothetical public auction.


author: KING, Circuit Judge:

text:
    George T. MOENCH, as Co-Trustee on behalf of George T. Moench Irrevocable Trust; Jennifer J. Aregood, as Co-Trustee on behalf of George T. Moench Irrevocable Trust, Plaintiffs-Appellees v. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, L.L.C., In personam, Defendant-Appellant
    No. 15-31105
    United States Court of Appeals, Fifth Circuit.
    Filed September 29, 2016

      Chip G. Schoneberger, Daniel K. Calisher, Foster, Graham, Milstéin & Calisher, L.L.P.," Denver, CO, Henry St. Paul Pro-vosty, Provosty & Gankendorff, L.L.C., New Orleans, LA, for Plaintiffs-Appellees.
    Todd Gregory Crawford, Esq., John Steven Garner, Esq., John Anthony Scialdone, Esq., Michael James Thompson, Jr., Fowler Rodriguez Valdes-Fauli, Gulfport, MS, John Steven Garner, Esq., Scialdone Law Firm, P.L.L.C., New Orleans, LA, for Defendant-Appellant.
    •Before KING, SMITH, and COSTA, Circuit Judges.
   KING, Circuit Judge:

A towing vessel owned and operated by Defendant-Appellant Marquette Transportation Co. Gulf-Inland, L.L.C., allided with a private vessel, the SES EKWATA, owned by the George T. Moench Irrevocable Trust. Plaintiffs-Appellees, trustees of the George T. Moench Irrevocable Trust, sued Marquette for damages. After a bench trial, the district court awarded damages and .attorneys’ fees against Marquette. Marquette appeals those awards, as well the district court’s exclusion of certain expert testimony from trial. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

The SES EKWATA was a 116 foot-long, fiberglass-hulled vessel originally built for military and commercial use, but later converted for private use. In that conversion, the EKWATA was stripped of many components, essentially leaving a bare hull and 8,000 square feet of interior space. In 2005, Plaintiff-Appellee George T. Moench purchased the essentially bare hull of the EKWATA for $200,000. Between 2005 and 2011, he spent $217,000 in materials and equipment to refurbish the vessel. Moench, along with a marine carpenter, also spent thousands of hours laboring on the EK-WATA, where Moench lived several months each year.

In late May 2011, Moench moved the EKWATA to a fleeting facility along the Atehafalaya River to keep it safe during expected flooding. On June 10, 2011, the M/V SALVATION, a steel-hulled tug owned and operated by Defendant-Appellant Marquette Transportation Co. Gulf-Inland, L.L.C., which was towing two barges, abided with the EKWATA whbe it was moored at the fleeting facbity. Prior to the allision, the SALVATION’S captain knew that the Atehafalaya River was experiencing historic water levels, which created the potential for extreme cross-currents and required him to exercise extreme caution. Yet he proceeded down the river without assistance from another tug, and upon arriving at a holding position in the riyer, left the controls for a cup of coffee while the on-duty deckhand—who was supposed to be on watch—was below deck. By the time the captain returned to the con-tools, the river’s current had taken control of the SALVATION. After unsuccessfully attempting to regain control, the captain decided to allide with the EKWATA to avoid damaging the two barges in tow.

The allision between the steel-hulled SALVATION and fiberglass-hulled EK-WATA severely damaged the EKWATA and caused it to take on water. After the allision, Moench attempted to determine the full extent of the damage by dry-docking the EKWATA; however, he was unable to find anyone willing to assume the liability of transporting the severely damaged vessel for inspection. The EK-WATA was subsequently vandalized, which resulted in various materials and equipment Moench purchased being stolen.

Moench filed the instant suit on June 6, 2012, invoking the admiralty and maritime jurisdiction of the district court and asserting general maritime law negligence and unseaworthiness claims against Marquette. Moench claimed the EKWATA was a total (or constructive total) loss as a result of the allision and sought the pre-casualty value of the vessel. Up to and through trial, Marquette contested liability, despite the captain of the SALVATION admitting the facts outlined above. On the issue of damages, Moench testified at trial (without objection from Marquette) to the substantial financial investment he had made in the EKWATA. Moench and Marquette also elicited the testimony of experts at trial to assist the court on the issue of damages. Moench’s expert testified that the pre-casualty value of the EKWATA was $850,000-$1.5 million. He also testified that the replacement cost, less depreeiation, of the EKWATA was $5 million-$7.5 million. Marquette’s first expert testified that the EKWATA was a constructive total loss as a result of the allision and that its pre-casualty value was $50,000, Marquette’s second expert also testified that the EKWATA was a constructive total loss, concluding that repair costs would be “hundreds of thousands” of dollars while the EKWATA’s pre-casualty value was $75,000-$100,000. The third expert presented by Marquette, Larry Strouse, was originally hired and designated by Moench. He testified that repair costs would be $285,000, but admitted this estimate was inconclusive of all damages from the allision because the EKWATA could not be dry-docked to fully assess the damage below ■ the waterline. At trial, Marquette also sought to elicit testimony from Strouse that the pre-casualty value of the EKWATA was $120,000. The district court, however, concluded that he could not testify to that opinion because it was not expressed in his expert report.

After the bench trial, the district court found Marquette at fault. On the issue of damages, the district court, after considering all of the testimony, found that the EKWATA’s pre-casualty value was $417,000 and that the cost of repairing the EKWATA would exceed that value. Based on these findings, the district court concluded that the EKWATA was a constructive total loss and awarded Moench $822,890, representing the pre-casualty value of the EKWATA, less the value of materials and equipment that Moench could have preserved following the allision. The district court also found that Marquette’s handling of the case was “an abuse of the process and bad faith” and expressed its “feeding]” that an award of reasonable attorneys’ fees and costs to Moench was justified under those circumstances. Moench subsequently requested $323,138,90 in fees and costs based on Marquette’s handling of the case, submitting detailed declarations and billing records to substantiate its request. Marquette responded that its handling of the case did not warrant sanction. Marquette also objected to the amount of fees and costs requested by Moench, principally asserting that it should be reduced as disproportionate to the amount involved and the results obtained. The district court .agreed with this latter objection in part and reduced Moench’s request by $27,702.81, awarding him $295,436.09. Marquette timely appealed.

II. DISCUSSION

Marquette asserts that the district court erred in (i) making its constructive total loss determination; (ii) refusing to allow Larry Strouse to opine on the EKWATA’s pre-casualty value; and (iii) imposing attorneys’ fees as a sanction for its handling of the case and awarding the amount of fees it did. We address each assertion in turn.

A. Constructive Total Loss Determination

Marquette asserts that the district court’s pre-casualty valuation of the EK-WATA and its finding that the costs of repair would exceed that valuation are not supported by the record, particularly the expert testimony introduced at trial. Thus, Marquette argues, the district court erred in concluding that the EKWATA was a constructive total loss and in awarding Moench damages on that basis.

We review the district court’s constructive total loss determination for clear error. See Ryan Walsh. Stevedoring Co. v. James Marine Servs., Inc., 792 F.2d 489, 491 (5th Cir. 1986). A vessel is a total (or constructive total) loss when repair is not physically or economically feasible, such as when the cost of repairs exceeds the vessel’s pre-casualty value. See Gaines Towing & Transp., Inc. v. Atlantia Tanker Corp., 191 F.3d 633, 635 (5th Cir. 1999); see also Pillsbury Co. v. Midland Enters., Inc., 715 F.Supp. 738, 763 (E.D. La. 1989). In the case of total (or constructive total) loss, the owner is entitled to recover the pre-casualty value of the vessel (i.e., the price which would result from the hypothetical fair negotiations between an owner willing to sell and a purchaser desiring to buy). See Standard Oil Co. of N.J. v. S. Pac. Co., 268 U.S. 146, 155-56, 45 S.Ct. 465, 69 L.Ed. 890 (1925); see also Gaines Towing & Transp., 191 F.3d at 635. When a vessel’s pre-casualty value cannot be established by recent comparable sales, there is no precise rule or formula for valuation. See Standard Oil, 268 U.S. at 155-56, 45 S.Ct. 465. Instead, the district court “should consider any and all evidence before it” that bears on value. Greer v. United States, 505 F.2d 90, 93 (5th Cir. 1974). This includes evidence of the vessel’s purchase price and the cost of any improvements to the vessel. Id. “[0]ther evidence such as replacement cost, depreciation, expert opinion and the amount of insurance” should also be considered to determine pre-casualty value. King Fisher Marine Servs., Inc. v. NP Sunbonnet, 724 F.2d 1181, 1185 (5th Cir. 1984); see also Carl Sowyer, Inc. v. Poor, 180 F.2d 962, 963 (5th Cir. 1950). The court must then make an “informed judgment.” Bloomfied S.S. Co. v. Brownsville Shrimp Exch., 243 F.2d 869, 873 (5th Cir. 1957). In doing so, the court is. not bound by any single piece of evidence, including the opinions or for-muías elicited by the parties’ experts. See Bloomfield, 243 F.2d at 873 (rejecting argument that district court was bound by vessel’s purchase price, book value, or similar values reached by expert surveyor); see also Lukens v. Comm’r, 945 F.2d 92, 96 (5th Cir. 1991). If the district court’s valuation “is within the range of figures that may properly be deduced from the evidence,” it is not clearly erroneous, even if the valuation is not “a figure as to which there is specific testimony.” Lukens, 945 F.2d at 96 (quoting Anderson v. Comm’r, 250 F.2d 242, 249 (5th Cir. 1957)).

The district court had the benefit of witnessing the testimony at trial and was in the best position to resolve the conflicting testimony concerning value and repair cost. See Ryan, 792 F.2d at 491. With regard to value, the district court found that the EKWATA was an uncommon vessel which could not be valued based on comparable sales and that much of the evidence on valuation was unreliable. It credited the vessel’s purchase price ($200,000) and the cost of materials and equipment spent improving it ($217,000) as the most reliable of the recognized indicia of value. See Greer, 402 F.2d at 93. The district court’s $417,000 valuation was near the middle of the experts’ opinions ($50,-000-$1.5 million) and well below replacement cost, less depreciation ($5-7.5 million)—both of which are recognized indicia of value. See King Fisher Marine Servs., 724 F.2d at 1185. The district court’s valuation was “within the range of figures that may properly be deduced from the evidence” and thus not clearly erroneous. Lukens, 945 F.2d at 96 (quoting Anderson, 250 F.2d at 249); see also Greer, 505 F.2d at 93; Bloomfield, 243 F.2d at 874.

With regard to repair cost, the district court heard the undisputed testimony at trial that the steel-hulled SALVATION’S allision with the fiberglass-hulled EKWATA caused severe damage to the EKWATA. The damage was severe enough that all of the expert witnesses agreed (in spite of their differing opinions on value and repair cost) that the EK-WATA was a total loss, either real or constructive. The district court credited the expert testimony that repair costs would total “hundreds of thousands” of dollars. It also noted Strouse’s testimony “that repairs would be in the range of $285,000 was, admittedly, incomplete and inconclusive” because Strouse could not fully assess the damage below the waterline without having the EKWATA dry-docked. Although Strouse’s estimate nominally included damage below the waterline, we cannot say, given the other testimony and Strouse’s uncertainty about damage below the waterline, that the district court clearly erred in finding that the cost of repairing the severely damaged EKWATA exceeded its pre-casualty value and, therefore, the EKWATA was a constructive total loss.

B. Exclusion of Expert Testimony

Marquette next asserts that the district court erred in refusing to allow Larry Strouse to opine on the EKWATA’s pre-casualty value, even though he did not express an opinion on that in his expert report. According to Marquette, Strouse was a non-retained expert witness and thus was not required to provide any report under Federal Rule of Civil Procedure 26(a)(2)(B). Therefore, argues Marquette, Strouse should have been allowed to testify on any “facts or data obtained or observed in the course of the sequence of events giving rise to the litigation,” whether included in his report or not. See Fed. R. Civ. P. 26(a)(2)(C).

This court reviews a district court’s exclusion of expert testimony for abuse of discretion. See Brown v. Ill. Cent. R. R. Co., 705 F.3d 531, 535 (5th Cir. 2013). But even when this court finds an abuse of discretion, it will not reverse the district court’s ruling unless it affected the party’s “substantial rights.” 28 U.S.C. § 2111; see also Fed. R. Evid. 103(a). The party claiming the error bears the burden of demonstrating its substantial rights were prejudiced. See McClain v. Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008). “A ruling has affected the substantial rights of the party if, when considering the evidence presented at trial, the ruling had a substantial effect on the outcome of the trial.” U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 430 (5th Cir. 2014). The exclusion of cumulative evidence does not affect a party’s substantial rights. See Sanford v. Johns-Manville Sales Corp., 923 F.2d 1142, 1148 (5th Cir. 1991).

Assuming arguendo that the district court abused its discretion in refusing to allow Strouse to opine on the EKWATA’s pre-casualty value, Marquette has failed to demonstrate that this refusal substantially-affected the outcome of the trial. Strouse’s proffered testimony would have been merely cumulative of other testimony on pre-casualty value offered at trial. Marquette repeatedly emphasized that the EKWATA’s pre-casualty value was substantially less than the amount testified to by Moench’s expert (and what the district court ultimately found). Marquette elicited testimony from two experts that the pre-casualty value of the EKWATA was less than $100,000 because the EKWATA was “cosmetically and mechanically deficient.” As Marquette itself recognizes on appeal, Strouse’s téstimony would have simply “confirmed each of these opinions.” Because Strouse’s testimony was admittedly cumulative, the district court’s error, if any, did not affect Marquette’s substantial rights. See Sanford, 923 F.2d at 1148.

C. Attorneys’ Fee Award

Marquette finally argues that it had a good faith basis for questioning Moench’s pre-casualty valuation; thus, the district court was not justified in awarding attorneys’ fees as a sanction for its handling of the case. Moreover, Marquette argues, the award was-excessive.

We review a district court’s determination of an attorneys’ fee award under an abuse of discretion standard and the findings of fact supporting the' award under a clearly erroneous standard. See Black v. SettlePou, P.C., 732 F.3d 492, 496 (5th Cir. 2013). The general rule in federal court, the so-called “American Rule,” is that litigants are responsible for their own fees. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 257, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Federal courts, however, possess “inherent power” to assess fees as sanctions when the losing party has “acted in bad faith, vexatiously, wantonly, or -for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Alyeska Pipeline Serv., 421 U.S. at 258-59, 95 S.Ct. 1612). Under this test, sanctions are warranted when a party “knowingly or recklessly raises a[n objecr tively] frivolous argument, or argues a meritorious claim for the purpose of-harassing an opponent.” Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 561 & n.4 (5th Cir. 2015) (quoting Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir. 2008)). Thus, even when a party is pursuing a meritorious claim or defense, sanctions may be assessed when the party “abuse[s] ... the judicial process in the method of prosecution” of that claim or defense. Batson v. Neal Spelce Assocs. Inc., 805 F.2d 546, 550 (5th Cir. 1986). Pursuing “an aggressive litigation posture” is not an abuse of the judicial process, “[b]ut advocacy simply for the sake of burdening an opponent with unnecessary expenditures of time and effort clearly [is].” Id.

Here, the district court detailed the factual findings underpinning its conclusion that Marquette abused the judicial process and acted in bad faith during the course of the litigation. Specifically, .the district court found that Marquette contested liability up to and through trial even though it “clearly knew the extent of its liability based on the circumstances of the case and the actions of its captain ... [and] was fully aware of the fact that [Moench] had no liability whatsoever for this allision.” The district court further found that Marquette “presented two experts who were so lacking they could not even properly ñamé the vessel [at issue].”

On appeal, Marquette does not specifically challenge any of these findings. Instead, Marquette asserts that the fee award was unwarranted because Marquette had a good faith basis to challenge the quantum of damages and thus in proceeding through a trial. But even if true, this fact did not justify Marquette’s intransigence on liability or the means by which Marquette defended Moench’s damages claim—namely, one expert who, according to the district court’s findings, opined on value “without including any comparables, without considering the equipment on the vessel, without an accurate description of the vessel, and without reliable underlying information” and á second expert who, according to the district court’s findings, “not only failed to correct the glaringly incorrect information set forth in [the first expert’s] report, but incorporated it into his own.” See Gate Guard Serve., 792 F.3d at 562-68; Batson, 805 F.2d at 550-51. We cannot say that the district court’s findings on bad faith were clearly erroneous or that the court abused its discretion in awarding Moench fees as a sanction based on those findings.

Having concluded that the district court did not abuse its discretion in awarding attorneys’ fees as a sanction, we must address the amount of fees awarded by the district court. The parties agree that the two-step lodestar method applies to the calculation of the fee award. Under this method, a court must first calculate the “lodestar” amount “by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). “There is a strong presumption of the reasonableness of the lodestar amount.” Black, 732 F.3d at 502. But the district court may increase or decrease the lodestar amount “based on ‘the relative weights of the twelve factors set forth in Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) ].’ ” Id. (quoting Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006)). In reviewing lodestar adjustments, this court reviews the district court’s analysis “only to determine if the court sufficiently considered the appropriate criteria.” Id. (quoting La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995)). A district court must provide “a reasonably specific explanation for all aspects of a fee determination.” Perdue v. Kenny A., 559 U.S. 542, 558, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). This does not, however, require a district court to recite or even mention the Johnson factors, so long as “the record clearly indicates that the district court has utilized the Johnson framework as the basis for its analysis.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 (5th Cir. 2012) (internal quotation marks- and citation omitted); see also EEOC v. Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009).

Marquette does not challenge the district court’s determination of the lodestar amount itself. Rather, it challenges the district court’s decision not to reduce (or further reduce) that amount based on the Johnson framework, namely the degree of success obtained by Moench. According to Marquette, the district court s factual findings do not indicate that the court even considered the Johnson framework. We disagree. Although the district court did not explicitly recite the Johnson factors, its findings clearly evince that the Johnson framework was the basis -for its analysis. Specifically, they demonstrate that the district court considered Marquette’s objection to the fee request, namely that the fees sought were disproportionate to the amount involved and the results obtained (.Johnson factor 8); carefully reviewed the detailed declarations and billing records submitted by Moench to determine which fees could be reduced or eliminated based on Marquette’s objection; and did, in fact, reduce or eliminate certain fees based on Marquette’s objection. The district court’s findings, like* others we have reviewed, certainly “could have used more details,” Forbush v. J.C. Penny Co., 98 F.3d 817, 823 (5th Cir. 1996), but nonetheless they make sufficiently clear that the district court did “consider the relationship between the. extent of success and the amount of the fee award,” Combs v. City of Huntington, 829 F.3d 388, 395 (5th Cir. 2016) (alteration omitted) (quoting Farrar v. Hobby, 506 U.S. 103, 115-16, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). Marquette’s arguments with respect to the Johnson framework do not persuade us that the district court abused its discretion by declining to make further downward adjustment to the fee award.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . The EKWATA's registered owner was the George T. Moench Irrevocable Trust. For ease of reference, we refer to the George T. Moench Irrevocable Trust and George T. Moench interchangeably as "Moench.”

      . An allision is "[t]he contact of a vessel with a stationary object such as an anchored vessel or a pier.” Allision, Black’s Law Dictionary (10th ed. 2014); see also Apache Corp. v. Global Santa Fe Drilling Co., 435 Fed.Appx. 322, 323 n.1 (5th Cir. 2011) (per curiam).

      . Among other things, the allision resulted in compression damage; an eighteen foot hole on the starboard side of the vessel; another twelve foot by six foot hole on the starboard side of the vessel; various splits and fractures in the hull extending below the water line; and internal damage.

      . Moench also sought punitive damages and lost business revenue from Marquette. The district court dismissed these claims, and they are not directly at issue in this appeal.

      . Marquette seems to argue that, even after it presented evidence, the district court was (and consequently this court is) bound by the evidence presented in Moench’s case-in-chief. However, this court made clear in Greer that the district court "should consider any and all evidence before it.” 505 F.2d at 93. This necessarily included the evidence Marquette elected to present. Our conclusion in Greer is consistent with the general rule that, where both parties have offered evidence, "the party supported by the weight of the evidence will prevail regardless of which party bore the burden of persuasion, proof, or preponderance.” Whitehouse Hotel Ltd. P'ship v. Comm’r, 615 F.3d 321, 332 (5th Cir. 2010) (quoting Blodgett v. Comm’r, 394 F.3d 1030, 1039 (8th Cir. 2005)); see also Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 328-29 (4th Cir. 2001). It is also consistent with our general practice of testing the sufficiency of the evidence on appeal by viewing the entire record. See Wealden Corp. v. Schwey, 482 F.2d 550, 551 (5th Cir. 1973) (rejecting request “for a review of the evidence as it stood when plaintiff closed the presentation of his evidence”); see also Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007); Gaffney v. Riverboat Servs. of Indiana, 451 F.3d 424, 451 n.29 (7th Cir. 2006).

      . On appeal, Marquette also argues, as it did in the district court, that the parties’ settlement negotiations were improperly considered in making the fee award. In ruling on this argument, the district court stated that the parties’ settlement negotiations were not the basis for its fee award, rather they were “simply additional evidence of Marquette’s actions which the Court found throughout the case to be an abuse of the process and bad faith.” With respect to the district court's statement that the parties’ settlement negotiations were not the basis for its fee award, "[w]e have no choice but to believe [the district court].” Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.1981).

      . When "invoking its inherent power” to sanction, a district court "must comply with the mandates of due process.” Chambers, 501 U.S. at 50, 111 S.Ct. 2123; see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Although Marquette asserts, in passing, that the district court's award was made sua sponte, it does not offer any supporting argument or citation to authority indicating that the district court failed to comply with due process. Accordingly, any due process argument Marquette could have made was inadequately briefed and' therefore waived. See Fed. R. App. P. 28(a)(8)(A); see also Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014). But even if it was not, we could not conclude that the district court abused its discretion by failing to give Marquette the opportunity to be heard at a meaningful time and in a meaningful mariner—the fundamental requirerhent of due process, Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)— because it considered and responded to all of Marquette’s various written submissions. See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92 (5th Cir. 1996) ("[T]he opportunity to respond through written submissions usually constitutes sufficient opportunity to be heard.” (citing Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 347 (5th Cir. 1990))).

      . The twelve Johnson factors are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the relevant community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10). the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717-19.