MEMORANDUM OPINION1

James O. Browning, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on: (i) the Defendants and Third-Party Defendants Hi-Land Potato Company, Inc.'s, and Carl Worley's Motion for Award of Attorney's Fees and Costs, filed February 28, 2014 (Doc. 374)("Motion"); and (ii) Defendant Tan-O-On Marketing, Inc.'s Motion to File Response Out of Time, filed April 8, 2014 (Doc. 382)("Timing Motion"). The Court held a hearing on July 9, 2014. The primary issues are: (i) whether the Court has the power under general trust law principles to award attorney's fees to Defendants and Third-Party Defendants Hi-Land Potato Company, Inc. and Carl Worley, the prevailing parties in this case under the Perishable Agricultural and Commodities Act, 7 U.S.C. §§ 499a-499t ("PACA"); (ii) whether the Court should award attorney's fees; and (iii) whether the Court should grant Defendant Tan-O-On Marketing's request to file its response to the Motion out of time. First, the Court will deny the Motion. The Court concludes that it will not award attorney's fees, because Hi-Land Potato and Carl Worley do not have a contractual or statutory right to attorney's fees, and general trust law principles do not support the award of attorney's fees under the circumstances of this case. Second, the Court will grant the Timing Motion.

FACTUAL BACKGROUND

The Court has explained the facts of this case in four prior Memorandum Opinion and Orders: (i) the Memorandum and Opinion and Order, filed July 4, 2012 (Doc. 214)("Motion to Amend MOO"), see Skyline Potato Co., Inc. v. Tan-O-On Mktg., Inc., 879 F.Supp.2d 1228, 1233-34 (D.N.M. 2012); (ii) the Memorandum Opinion and Order, filed June 12, 2012 (Doc. 189) see Skyline Potato Co., Inc. v. Tan-O-On Mktg., Inc., CIV 10-0698 JB/RHS, 2012 WL 2384087, at **1-4 (D.N.M. June 12, 2012); (iii) the Memorandum Opinion and Order, filed October 12, 2012 (Doc 101); and (iv) the Memorandum and Opinion and Order, filed Dec. 6, 2012 (Doc. 331), see Skyline Potato Co., Inc. v. Tan-O-On Mktg., Inc., 909 F.Supp.2d 1225, 1230-37 (D.N.M.2012). The Court will therefore integrate those facts herein by reference, and not repeat them. The Court will restate only some facts that are needed to evaluate and provide context to the Motion.

This lawsuit arises from Defendant Tan-O-On Marketing's failure to pay Plaintiff Skyline Potato Company, Inc. ("Skyline Potato"), and Intervening Plaintiffs Folson Farm Corporation, Mark Produce Corporation, Billingsley Produce Sales, Inc., Alsum Produce, Inc., and Peterson Bros. River Valley Farms, Inc. (collectively the "Folson Farm Group") for sales of potatoes they made to Tan-O-On Marketing between October and December, 2009. During that time period, Tan-O-On Marketing paid Hi-Land Potato for potatoes that Hi-Land Potato shipped to customers between October and December, 2009. The invoices that Billingsley Produce provided to Tan-O-On Marketing during that time period included the following language:

1.5% per month will be charged on past due accounts (18% annual percentage rate). Plaintiff and Intervening Plaintiffs' Joint Motion for Partial Summary Judgment and Incorporated Memorandum of Law, filed August 8, 2012 (Doc. 253-6)("Billingsley Produce invoice") at 11. The invoices that Mart Produce provided to Tan-O-On Marketing during that time period included the following language:

Plaintiff and Intervening Plaintiffs' Joint Motion for Partial Summary Judgment and Incorporated Memorandum of Law, filed August 8, 2012 (Doc. 253-7)("Mart Produce invoice") at 9.

PROCEDURAL HISTORY

Skyline Potato and the Folson Farm Group allege that Tan-O-On Marketing, Inc. accepted delivery of Skyline Potato's and the Folson Farm Group's produce, and delivered the potatoes to various buyers, but did not pay Skyline Potato and the Folson Farm Group for the produce. See Petition for Enforcement of USDA PACA Order and Award of Damages; Complaint for Violation of Federal Unfair Trade Practices Provision in PACA (7 USC [sic] 499b), Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Fraud, Money Owed on Open Account, and Prayer for Declaratory Relief and Piercing of the Corporate Veil ¶¶ 22-25, at 5, filed July 23, 2010 (Doc. 2)("Skyline Complaint"); Complaint in Intervention ¶¶ 7-16, at 4-6, filed July 8, 2011 (Doc. 60)("Folson Farm Group Complaint"). Skyline Potato alleges that Hi-Land Potato and Carl Worley are liable for the same amount and on the same counts, because "Tan-O-On was acquired by Hi-Land Potato Company, Inc." Skyline Complaint ¶ 7, at 3. The Folson Farm Group alleges that Hi-Land Potato is liable to them for payment for the produce that they delivered to Tan-O-On Marketing, because Hi-Land Potato and Worley received assets and retained those assets, which were assets of the statutory trust created pursuant to § 499e of PACA. See Folson Farm Group Complaint ¶¶ 40-44, at 10-11. Tan-O-On Marketing alleges that Hi-Land Potato and Worley misappropriated its Kroger Co. vender number, and in the process, took over Tan-O-On Marketing's business operation. See Response to Motion to Dismiss Fraud Claims, filed Jan. 23, 2012 (Doc. 96). The Court entered its Final Judgment, together with its Findings of Fact, Conclusions of Law, and Order on January 31, 2014. See Final Judgment, filed January 31, 2014 (Doc. 373); Findings of Fact, Conclusions of Law, and Order, filed January 31, 2014 (Doc. 372). In its Findings of Fact, Conclusions of Law, and Order and Final Judgment, the Court ruled that Hi-Land Potato and Worley were not liable to Skyline Potato or to the Folson Farm Group for PACA violations. The Court also ruled that neither Hi-Land Potato nor Worley were liable to Tan-O-On Marketing or to the Andersons for theft of trade secrets, fraudulent conveyance, or unjust enrichment. The Court's ruling terminated this case. Hi-Land Potato and Carl Worley now ask the Court to award attorney's fees against Tan-O-On Marketing, the Andersons, Skyline Potato, and the Folson Farm Group.

1. Skyline Potato's Claims.

In Skyline Potato's Petition for Enforcement of USDA PACA Order and Award of Damages; Complaint for Violation of Federal Unfair Trade Practices Provision in PACA (7 U.S.C. § 499b), Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Fraud, Money Owed on Open Account, and Prayer for Declaratory Relief and Piercing of the Corporate Veil, filed July 23, 2010 (Doc. 2)("Skyline Potato's Original Complaint"), it raised the following causes of action, without distinguishing among the Defendants: (i) "Petition for Enforcement of Order and Collection Under the PACA Trust," Skyline Potato's Original Complaint at 7-8; (ii) "Violation of PACA Unfair Business Conduct Provision," Skyline Potato's Original Complaint at 9; (iii) "Breach of Written Contract," Skyline Potato's Original Complaint at 9-10; (iv) "Breach of Implied Covenants of Good Faith and Fair Dealing," Skyline Potato's Original Complaint at 10-12; (v) "Quantum Meruit," Skyline Potato's Original Complaint at 12; (vi) "Conversion," Skyline Potato's Original Complaint at 12; (vii) "Fraud," Skyline Potato's Original Complaint at 13-14; (viii) "Money Due on an Open Account," Skyline Potato's Original Complaint at 14-15; and (ix) "Prayer for the Remedy of `Piercing the Corporate Veil,'" Skyline Potato's Original Complaint at 15-16. Skyline Potato named the following entities as the Defendants: Tan-O-On Marketing, Hi-Land Potato, G. Anderson, J. Anderson, Mark Lounsbury, and Bill Metz, in their "individual capacity[ies] and as Director[s]/Shareholder[s] of Tan-O-On Marketing"; and Carl Worley, individually, "as Director/Shareholder of Tan-O-On Marketing Inc., and as Director/Shareholder of Hi-Land Potato Company." Skyline Potato's Original Complaint at 1.

In its Memorandum Opinion and Order, filed January 24, 2011 (Doc. 23)("MTD MOO"), the Court granted: (i) the Motion to Dismiss as to Defendant Bill Metz, filed September 13, 2010 (Doc. 7); (ii) the Motion to Dismiss as to Defendant Mark Lounsbury, filed September 13, 2010 (Doc. 9); and (iii) the Unopposed Motion to Dismiss Defendants Hiland [sic] Potato Company, Mark Lounsbury, Bill Metz, and Carl Worley Without Prejudice, filed September 22, 2010 (Doc. 12), thereby dismissing Bill Metz, Mark Lounsbury, Carl Worley, and Hi-Land Potato. See MTD MOO at 9.

At a hearing held on October 3, 2011, the Court granted Skyline Potato Company's Opposed Motion for Leave to File Amended Complaint, filed June 7, 2011 (Doc. 54). The Court memorialized this decision in its Memorandum Opinion and Order, filed November 23, 2011 (Doc. 83), and its Amended Memorandum Opinion and Order, 278 F.R.D. 628, 629-30 (D.N.M.2011).

In its First Amended Petition and Complaint, Prayer for Declaratory Relief and Piercing of the Corporate Veil, filed October 21, 2011 (Doc. 73)("Skyline Potato's First Amended Complaint"), Skyline Potato asserted the following claims, without distinguishing among the Defendants for each claim: (i) "Petition for Enforcement of Order and Collection Under the PACA Trust," Skyline Potato's First Amended Complaint ¶¶ 37-51, at 7-9; (ii) "Violation of PACA Unfair Business Conduct Provision," Skyline Potato's First Amended Complaint ¶¶ 52-57, at 9-10; (iii) "Breach of Written Contract," Skyline Potato's First Amended Complaint ¶¶ 58-65, at 10-11; (iv) "Breach of Implied Covenants of Good Faith and Fair Dealing," Skyline Potato's First Amended Complaint ¶¶ 66-77, at 11-12; (v) "Quantum Meruit," Skyline Potato's First Amended Complaint ¶¶ 78-80, at 12-13; (vi) "Conversion and Unlawful Retention of Plaintiff's Property and PACA Trust Assets," Skyline Potato's First Amended Complaint ¶¶ 81-89, at 13-14; (vii) fraud, see Skyline Potato's First Amended Complaint ¶¶ 90-97, at 14-15; (viii) "Money Due on an Open Account," Skyline Potato's First Amended Complaint ¶¶ 98-101, at 15-16; (ix) "Violation of PACA — Failure to Maintain PACA Trust Assets and Creation of a Common Fund," Skyline Potato's First Amended Complaint ¶¶ 102-108, at 16-17; (x) fraudulent transfer, see Skyline Potato's First Amended Complaint ¶¶ 109-115, at 17; (xi) "Constructive Trust," Skyline Potato's First Amended Complaint ¶¶ 116-121, at 18; and (xii) "Prayer for the Remedy of `Peircing [sic] the Corporate Veil,'" Skyline Potato's First Amended Complaint ¶¶ 122-126, at 19-20.

The Court entered default judgment on Skyline Potato's claims under PACA against Tan-O-On Marketing. See Default Judgment Order at 2, filed March 23, 2012 (Doc. 140).

In the Court's Stipulated Order Granting Joint Motion for Dismissal of Certain Claims by Plaintiff Skyline Potato Company Against Defendant Tan-O-On Marketing, filed April 18, 2012 (Doc. 158)("Stipulated Order"), the Court granted the parties' Joint Motion for Dismissal of Certain Claims by Plaintiff Skyline Potato Company against Defendants Tan-O-On Marketing, Inc.[,] Hi-Land Potato Company, Inc., and Carl Worley, filed April 17, 2012 (Doc. 155), and dismissed a number of claims. As against Tan-O-On Marketing, the Court dismissed Skyline Potato's claims for: (iv) "Breach of Implied Covenants of Good Faith and Fair Dealing"; (v) "Quantum Meruit"; (vii) fraud; (viii) "Money Due on an Open Account"; (x) fraudulent transfer; (xi) "Constructive Trust"; and (xii) "Prayer for Remedy of Piercing the Corporate Veil." Stipulated Order at 2. Against Hi-Land Potato and Worley, the Court dismissed: (i) "Petition for Enforcement of Order and Collection Under the PACA Trust," (ii) "Violation of PACA Unfair Business Conduct Provision"; (iii) "Breach of Written Contract"; (iv) "Breach of Implied Covenants of Good Faith and Fair Dealing"; (vii) fraud; (viii) "Money Due on an Open Account"; (ix) "Violation of PACA — Failure to Maintain PACA Trust Assets and Creation of a Common Fund"; and (xii) "Prayer for the Remedy of Piercing the Corporate Veil." Stipulated Order at 2-3.

In their Stipulation for Voluntary Dismissal of Claims Asserted by Intervening Plaintiff Potandon Produce, L.L.C. Against Defendant Tan-O-On Marketing, Inc. and Third Party Defendants Hi-Land Potato Company, Inc. and Carl Worley, filed April 25, 2012 (Doc. 167)("Potandon Produce Stipulation"), the parties stipulated to dismiss all of Potandon Produce's claims against Tan-O-On Marketing, Hi-Land Potato, and Carl Worley. See Potandon Produce Stipulation at 1.

During summary judgment briefing, Skyline Potato abandoned a number of claims. The Court held a hearing on multiple motions for summary judgment on September 27, 2012, in which Skyline Potato confirmed that it had abandoned all but the PACA claims. See Transcript of Hearing at 4:20-5:5 (taken September 27, 2012)(Bohnhoff, Court, Jaramillo).2

In the Pretrial Order, filed October 18, 2012 (Doc. 315), Skyline Potato and the Folson Farm Group indicated that they brought a claim only with respect to the alleged breach of the PACA trust. See Pretrial Order at 4.

2. The Folson Farm Group.

In their Complaint in Intervention, filed July 8, 2011 (Doc. 60), Folson Farm, Potandon Produce, Mart Produce, Billingsley Produce, Alsum Produce, and Peterson Brothers asserted claims for: (i) "Declaratory Relief Validating PACA Trust Claim" against Tan-O-On Marketing, Complaint in Intervention ¶¶ 6-16, at 4-6; (ii) "Enforcement of Payment From PACA Trust Assets" against Tan-O-On Marketing, Complaint in Intervention ¶¶ 17-21, at 6-7; (iii) "Violation of the PACA: Failure To Maintain PACA Trust Assets and Creation of Common Fund" against Tan-O-On Marketing, Complaint in Intervention ¶¶ 22-28, at 7-8; (iv) "Violation of PACA: Failure to Pay Promptly" against Tan-O-On Marketing, Complaint in Intervention ¶¶ 29-34, at 8-9; (v) breach of contract against Tan-O-On Marketing, see Complaint in Intervention ¶¶ 35-39, at 9-10; (vi) "Conversion and Unlawful Retention of PACA Trust Assets" against Hi-Land Potato, Complaint in Intervention ¶¶ 40-45, at 10-11; (vii) fraudulent transfer against Hi-Land Potato, see Complaint in Intervention ¶¶ 46-53, at 11-12; (viii) "Constructive Trust" against Hi-Land Potato, Complaint in Intervention ¶¶ 54-58, at 12-13; and (ix) unjust enrichment against Hi-Land Potato, see Complaint in Intervention ¶¶ 59-63, at 13-14.

The Court entered default judgment on the Folson Farm Group's PACA claims against Tan-O-On Marketing. See Default Judgment at 1-2, filed June 21, 2012 (Doc. 205).

During summary judgment briefing, the parties abandoned a number of claims. The Court held a hearing on multiple motions for summary judgment on September 27, 2012, where the Court recognized, and the Folson Farm Group confirmed, that it had abandoned all but the PACA claims. See Transcript of Hearing at 4:1-9 (taken September 27, 2012)(Court, Esquivel).3

In the Pretrial Order, Skyline Potato and the Folson Farm Group indicated that they brought a claim only with respect to the alleged breach of the PACA trust. See Pretrial Order at 4.

3. G. Anderson, J. Anderson, and Tan-O-On Marketing's Claims.

In G. Anderson and J. Anderson's Third Party Complaint for Fraud, filed February 22, 2011 (Doc. 26)("Andersons' Complaint"), G. Anderson and J. Anderson purported to assert various fraud claims against Hi-Land Potato and Carl Worley. See Andersons' Complaint at 1-4.

In what is labeled on the docket as Tan-O-On Marketing, G. Anderson, and J. Anderson's Amended Third-Party Complaint for Fraud and Theft of Trade Secrets and Unjust Enrichment, filed October 14, 2011 (Doc. 72), those parties purported to assert, under a single heading, claims for "Fraud, Unjust Enrichment Theft or Conversion of Trade Secrets and Corporate and Personal Assets" against Hi-Land Potato, Worley, and two additional Defendants: RPE, Inc. and Russell Wysocki. Amended Third-Party Complaint at 3.

In its Motion to Amend MOO, the Court granted in part and denied in part: (i) Tan-O-On Marketing's Motion to Amend Third Party Complaint for Fraud and Theft of Trade Secrets and Unjust Enrichment, filed February 2, 2012 (Doc. 105); and (ii) Defendants Hi-Land Potato Company's and Worley's Motion to Dismiss Fraud and Fraud-Related Claims in Third Party Complaint and to Dismiss Claims Filed by Gerald and Julie Anderson in Their Individual Capacities, filed February 7, 2012 (Doc. 109). See Motion to Amend MOO at 67-68, 879 F.Supp.2d at 1274. The Court explained:

Motion to Amend MOO at 68, 879 F.Supp.2d at 1274.

In their Amended Third Party Complaint for Fraudulent Conveyance and Theft of Trade Secrets and Unjust Enrichment, filed July 26, 2012 (Doc. 240)("Tan-O-On Marketing's Second Amended Complaint"), Tan-O-On Marketing asserted claims for: (i) fraudulent conveyance against Hi-Land Potato, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 39-62, at 8-12; (ii) theft of trade secrets and proprietary information against Hi-Land Potato, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 62-80, at 12-17; (iii) theft of trade secrets against RPE, Inc. and Russell Wysocki, Tan-O-On Marketing's Second Amended Complaint ¶¶ 81-103, at 17-22; (iv) "Unjust Enrichment and Unfair Trade Practice" against RPE, Inc. and Russell Wysocki, Tan-O-On Marketing's Second Amended Complaint ¶¶ 102-108, at 22-23; and (v) unjust enrichment against Hi-Land Potato and Carl Worley, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 109-113, at 24-25.

In their Stipulation of Dismissal of All Claims Against RPE, Inc., and Russell Wysocki with Prejudice, filed August 14, 2012 (Doc. 257), the parties informed the Court that they stipulated to "dismissal with prejudice of any and all claims that any of them asserted, or could have asserted, in this matter against Third-Party Defendant RPE, Inc., Third-Party Defendant Russell Wysocki, or their respective employees, agents, and/or assigns." Stipulation of Dismissal of All Claims Against RPE, Inc., and Russell Wysocki with Prejudice at 1. The parties also informed the Court that, "following said dismissal, there are no claims remaining in this matter against" RPE, Inc. or Wysocki, "and they are no longer parties to this action." Stipulation of Dismissal of All Claims Against RPE, Inc., and Russell Wysocki with Prejudice at 1-2.

In the Pretrial Order, G. Anderson, J. Anderson, and Tan-O-On Marketing indicated that they brought claims for theft of trade secrets, fraudulent conveyance, and unjust enrichment. See Pretrial Order at 5.

4. Hi-Land Potato and Carl Worley.

In Third-Party Defendant Hi-Land Potato Company, Inc.'s and Carl Worley's Answer to Third-Party Complaint for Fraudulent Conveyance, Theft of Trade Secrets, and Unjust Enrichment, and Counterclaim Against Tan-O-On Marketing, Inc., filed August 10, 2012 (Doc. 256), Hi-Land Potato and Worley contend that, if the Court finds them liable to Skyline Potato or to the Folson Farm Group, they are "entitled to indemnification, contribution, and/or subrogation against [Tan-O-On Marketing] for the amount of such liability." Third-Party Defendant Hi-Land Potato Company, Inc.'s and Carl Worley's Answer to Third-Party Complaint for Fraudulent Conveyance, Theft of Trade Secrets, and Unjust Enrichment, and Counterclaim Against Tan-O-On Marketing, Inc. at 13. In Third-Party Defendant Hi-Land Potato Company, Inc.'s and Carl Worley's Amended Answer to Third-Party Complaint for Fraudulent Conveyance, Theft of Trade Secrets, and Unjust Enrichment, and Counterclaim Against Tan-O-On Marketing, Inc., filed August 15, 2012 (Doc. 259), Hi-Land Potato and Worley assert the same theory of liability. See Third-Party Defendant Hi-Land Potato Company, Inc.'s and Carl Worley's Amended Answer to Third-Party Complaint for Fraudulent Conveyance, Theft of Trade Secrets, and Unjust Enrichment, and Counterclaim Against Tan-O-On Marketing, Inc. at 13.

In the Pretrial Order, Hi-Land Potato indicates that the Court should offset its liability, if any, from G. Anderson and Tan-O-On Marketing's assets. See Pretrial Order at 4.

5. Findings of Fact, Conclusions of Law and Order, and Final Judgment.

On January 31, 2014, after three years of litigation, the Court entered its Final Judgment (Doc. 373), together with its Findings of Fact, Conclusions of Law and Order (Doc. 372), ruling that Hi-Land Potato and Worley were not liable to Skyline Potato or to the Folson Farm Group for PACA violations. The Court also ruled that neither Hi-Land Potato nor Worley were liable to Tan-O-On Marketing or to the Andersons for theft of trade secrets, fraudulent conveyance, or unjust enrichment. The Court's ruling terminated this case.

In its Findings of Fact, Conclusions of Law, and Order, the Court explained the equitable basis underlying its conclusions:

C. HI-LAND POTATO DID NOT BREACH ITS TRUST DUTIES AS A GENERAL CREDITOR OR AS A CO-BENEFICIARY OF TAN-O-ON MARKETING'S PACA TRUST.

Findings of Fact, Conclusions of Law and Order, at 141-166.

6. The Motion.

Hi-Land Potato and Worley filed the Motion on February 28, 2014. See Motion at 1. Before filing the Motion, counsel for Hi-Land and Worley contacted counsel for Skyline Potato, Tan-O-On Marketing, the Andersons, and the Folson Farm Group; Skyline Potato, Tan-O-On Marking, and the Andersons oppose the Motion. Counsel for the Folson Farm Group did not communicate their clients' position before Hi-Land Potato and Worley filed the Motion, but Skyline Potato, Tan-O-On Marketing, and the Andersons oppose the Motion. See Motion at 2.

Hi-Land Potato and Worley filed a memorandum brief concurrently with the Motion. See Memorandum Brief in Support of Hi-Land Potato Company, Inc.'s and Carl Worley's Motion for Award of Attorney's Fees and Costs, filed July 28, 2014 (Doc. 378)("Brief in Support of Motion"). Hi-Land Potato and Worley seek their fees and costs "pursuant to general principles of trust law, NMSA 1978, § 46A-10-1004 (2003), PACA and the common law of contracts." Brief in Support of Motion at 2. Hi-Land Potato and Worley contend that they are entitled to an award of their reasonable attorney's fees and costs incurred in the defense of the claims asserted against them. See Brief in Support of Motion at 2. Hi-Land Potato and Worley state that they incurred and paid $490,018.14 in attorney's fees and costs. See Declaration of Henry M. Bohnhoff, filed February 28, 2014 (Doc. 375)("Bohnhoff Dec."); Declaration of W. Spencer Reid, filed February 28, 2014 (Doc. 376)("Reid Dec."). Of that amount, to date, they have been reimbursed $4,629.42 pursuant to previous sanctions awards. See Memorandum Opinion and Order, filed July 4, 2012 (Doc. 215); Order, filed December 22, 2012 (Doc. 333). Hi-Land Potato and Worley now seek an award of the balance of their attorney's fees and costs, which they contend is $485,388.72. See Brief in Support of Motion at 17. Accordingly, Hi-Land Potato and Worley request the Court to order Skyline Potato, Tan-O-On Marketing, the Andersons, and the Folson Farm Group to pay Hi-Land Potato's and Carol Worley's attorney's fees and costs incurred in connection with their defense of the claims asserted against them in this action, in the amount of $485,388.72. See Motion for Attorney's Fees at 17.

In support of their Motion, Hi-Land Potato and Worley file two declarations. See Motion at 2; Bohnhoff Dec.; Reid Dec. First, Hi-Land Potato and Worley's attorney, Henry M. Bohnhoff, states in his declaration that he had primary responsibility for the representation of Hi-Land Potato and Worley, and that Leslie McCarthy Apodaca and Melanie Stambaugh assisted him. See Bohnhoff Dec. ¶ 4, at 2. Mr. Bohnhoff states that he is an employee, director and shareholder of Rodey, Dickason, Sloan, Akin & Robb, P.A. ("Rodey Law Firm"), that he passed the bar in 1982, and that he has been practicing law in New Mexico since 1982 in the areas of real estate and business disputes. See Bohnhoff Dec. ¶ 2, at 1-2. He states that Ms. Apodaca is a Rodey Law Firm director and shareholder, that she has been practicing law in Arizona since 1982 and in New Mexico since 1994, and that she was responsible for the day-to-day defense of the parties from the inception of the Rodey Law Firm's representation of Hi-Land Potato and Worley continuing through March 2012. See Bohnhoff Dec. ¶ 4, at 2. Mr. Bohnhoff declares that Ms. Stambaugh was a Rodey Law Firm associate who joined the law firm in the fall of 2011, after graduating from the University of New Mexico School of Law and being admitted to the New Mexico bar. See Bohnhoff Dec. ¶ 4, at 2-3. Mr. Bohnhoff states that Ms. Apodaca's and his rate was $310.00 per hour, while Ms. Stambaugh's rate for this case was $160.00 per hour. See Bohnhoff Dec. ¶ 8, at 6-7. He further states that paralegal and librarian time was billed at $90 per hour. See Bohnhoff Dec. ¶ 8, at 7. Mr. Bohnhoff asserts that the attorney's fees and costs were reasonable and necessary. See Bohnhoff Dec. ¶¶ 9-11, at 7-9. According to Mr. Bohnhoff, the bills to Hi-Land Potato were reduced by a total of $105,901.60 through discretionary "no charge" entries and discounts. Bohnhoff Dec. ¶ 9, at 7-8. Mr. Bohnhoff states the reasonable value of services provided was $431,018.00, plus tax in the amount of $30,357.58, and the reasonable cost for expenses incurred was $18,405.33, resulting in the total amount of $479,780.91. See Bohnhoff Dec. ¶¶ 10-12, at 8-9.

Second, Hi-Land Potato and Worley submit the Declaration of W. Spencer Reid, who was asked to provide his opinion on the reasonableness and necessity of the Rodey Law Firm's fees and costs. See Reid Dec. at 1. Mr. Reid states that he has been licensed to practice law in New Mexico and in the United Stated District Court for the District of New Mexico since 1979, and is also admitted to the bar for the United States Court of Appeals for the Tenth Circuit. See Reid Dec. ¶ 1, at 1. Mr. Reid asserts that he is fit to assess the reasonableness and necessity of the fees and costs in this case, because he has practiced in the Albuquerque area for thirty-four years, represented the Third Party Defendants RPE, Inc., and Wysocki until they were dismissed from this litigation in August 2012, continued to follow the case closely even after his clients' dismissal, and has reviewed Mr. Bohnhoff's Declaration and its exhibits. See Reid Dec. ¶ 3, at 2. Mr. Reid declares that the Rodey Law Firm fees and costs billed to Hi-Land Potato and Worley are reasonable and necessary based on the experience of the attorneys, the Albuquerque market, and the complexity of the case. See Reid Dec. ¶¶ 4-8, at 2-4.

7. Skyline Potato and the Intervening Plaintiffs' Response.

Skyline Potato and the Folson Farm Group filed an opposition to the Motion on April 7, 2014. See Plaintiff and Intervening Plaintiffs' Opposition to Hi-Land and Worley's Motion for Award of Attorneys Fees and Costs, filed April 7, 2014 (Doc. 380)("Skyline Response"). Skyline Potato and the Folson Farm Group argue that Worley is not entitled to attorney's fees, because he effectively waived his right to attorney's fees when he did not request them when Skyline Potato's claims were dismissed. See Skyline Response at 3-4. In addition, they contend that Hi-Land Potato and Worley are not entitled to attorney's fees, because: (i) the American Rule should apply, see Skyline Response at 4; (ii) this case lacks the requisite elements to award attorney's fees under the principles of equity, see Skyline Response at 10-12; (iii) PACA does not provide a means of awarding attorney's fees to Hi-Land Potato or Carl Worley, see Skyline Response at 13; and (iv) Hi-Land Potato7 lacks a contractual basis for entitlement to attorney's fees, see Skyline Response at 14-18.

Skyline Potato and the Folson Farm Group argue that the "American Rule," which stands for the proposition that parties to a lawsuit ordinarily pay their own attorney's fees unless a statute or contract provision shifts fees to the losing party, governs Hi-Land Potato's entitlement to attorney's fees. Skyline Response at 4. They contend that an exception to the American Rule occurs only if there is a statutory fee-shifting provision that permits a court to order attorney's fees and costs to the prevailing party, or if there is a contractual entitlement to attorney's fees and costs. See Skyline Response at 4. Skyline Potato and the Folson Farm Group assert that neither of these conditions is present here, and that the American Rule should therefore govern Hi-Land Potato and Carl Worley's claim to attorney's fees. See Skyline Response at 5.

Skyline Potato and the Folson Farm Group argue that Hi-Land Potato and Worley's argument that they are entitled to attorney's fees under Section 1004 of the New Mexico Uniform Trust Code, N.M. Stat. Ann. 1978, § 46A-10-1004 (2003), does not justify deviation from the American Rule. See Skyline Response at 5-8. Skyline Potato and the Folson Farm Group contend that the New Mexico Uniform Trust Code, N.M. Stat. Ann. 1978, §§ 46A-1-101 through 46A-11-1105, is not controlling with regard to Hi-Land Potato's claim for attorney's fees, because neither the Defendants nor the Court relied on the New Mexico Uniform Trust Code at any point during the litigation. See Skyline Response at 5-6. Instead, the Defendants stipulated that federal law applied to the Skyline Potato and the Folson Farm Group's claims against Hi-Land Potato. See Skyline Response at 5. Skyline Potato and the Folson Farm Group cite several cases8 that they insist support their argument that "in cases where jurisdiction has been established under a federal question, as in this case, state law has no application in determining entitlement to attorney's fees." See Skyline Response at 6-8. Finally, Skyline Potato and the Folson Farm Group contend that policy considerations support their argument that state laws should not be applied here. See Skyline Response at 7. According to Skyline Potato and the Folson Farm Group, applying state law to PACA law would disrupt the uniformity in PACA law from state to state and would promote forum shopping. See Skyline Response at 7. Skyline Potato and the Folson Farm Group therefore maintain that § 1004 does not constitute a statutory fee-shifting provision that would create an exception to the American Rule, because it would be inconsistent with federal jurisprudence and policy to apply state law — Section 1004 of the New Mexico Uniform Trust Code — to federal law — PACA. See Skyline Response at 7-8.

Skyline Potato and the Folson Farm Group argue that, setting aside the issue whether New Mexico state law is applicable here, the Defendants have failed to show that a PACA trust constitutes a trust under the New Mexico Uniform Trust Code. See Skyline Response at 8. Skyline Potato and the Folson Farm Group insist that PACA trusts are not trusts under the New Mexico Uniform Trust Code, because the New Mexico Uniform Trust Code applies exclusively to express trusts, and more specifically, to trusts that arise in an estate planning or other donative contexts, and not to commercial trusts that special-purpose legislation like PACA creates. See Skyline Response at 8. According to Skyline Potato and the Folson Farm Group, the New Mexico Uniform Trust Code therefore does not apply to PACA trusts and does not establish a means for the Defendants to recover attorney's fees. See Skyline Response at 9.

Skyline Potato and the Folson Farm Group reject Hi-Land Potato and Worley's argument that N.M. Stat. Ann. 1978, Section 46A-1-107 (2011) ("Section 107 of the New Mexico Uniform Trust Code") provides New Mexico with jurisdiction to construe this PACA trust's terms, because New Mexico has the most significant relationship with the matter at issue.9 Skyline Response at 9. Skyline Potato and the Folson Farm Group contend that the fact that the Pre-Trial Order held that New Mexico's prejudgment interest rate should apply does not establish a "significant relationship" with New Mexico, as the Defendants argued. Skyline Response at 9. Rather, Skyline Potato and the Folson Farm Group maintain that the jurisdiction with the most significant relationship is the United States, because the United States promulgated the laws governing PACA, and this matter concerns potato growers located across the United States. See Skyline Response at 9-10.

Skyline Potato and the Folson Farm Group assert that there is no merit to Hi-Land Potato and Worley's argument that attorney's fees are appropriate under principles of equity. See Skyline Response at 10-12. They argue that the Court should consider the five-factors that the Court of Civil Appeals of Oklahoma set forth in Atwood v. Atwood10 for determining whether attorney's fees should be awarded under the principles of equity. See Skyline Response at 11. According to Skyline Potato and the Folson Farm Group, the five factors that the Court should consider under Atwood v. Atwood are:

Skyline Response at 11. Skyline Potato and the Folson Farm Group argue that each factor weighs against awarding attorney's fees to Hi-Land Potato and Worley, and that Hi-Land Potato and Worley are therefore not entitled to attorney's fees under the principles of equity. See Skyline Response at 11-12.

In addition to principles of equity not providing a right to attorney's fees in this case, Skyline Potato and the Folson Farm Group assert that PACA does not establish an independent right to attorney's fees or prejudgment interest where a contract including a right to attorney's fees does not exist. See Skyline Response at 13. They further maintain that no case law exists supporting the Defendants' argument that New Mexico trust law supersedes PACA trust law such that an award of attorney's fees would be appropriate in this case. See Skyline Response at 18. Skyline Potato and the Folson Farm Group urge the Court to find that the invoices between Tan-O-On and Billingsley, and Tan-O-On and Mart Produce, do not entitle Hi-Land Potato to an award of attorney's fees. See Skyline Response at 14. Skyline Potato and the Folson Farm Group argue that, "[s]ince Hi-Land's claimed entitlement to attorney's fees under PACA is premised upon the existence of valid and enforceable contracts between Tan-O-On and [the Folson Farm Group], this Court must first determine whether such contracts exist." Skyline Response at 14. Skyline Potato and the Folson Farm Group maintain that the contracts are not enforceable under Section 2-207 of the Uniform Commercial Code, because the attorney's fee provision was a unilateral inclusion that materially altered the terms of the agreement. See Skyline Response at 14. They state: "The Tenth Circuit has noted that a unilateral attorney's fee provision is one that would not be readily expected or anticipated by the buyer, and is not party of the contract." Skyline Response at 15. Furthermore, they argue "several courts have held that, in cases involving PACA, attorney's fees provisions on an invoice do not automatically become part of a product seller's contract with the buyer." Skyline Response at 15. They maintain that a court must "rely on evidence that Tan-O-On subjectively knew or should have known of the added terms" when determining "whether an addition to a contract constitutes a material alteration." Skyline Response at 15. They insist that there is no evidence showing that Tan-O-On knew or assented to the attorney's fee provision in the Billingsley and Mart Product invoices. See Skyline Response at 15.

Skyline Potato and the Folson Farm Group argue that, even if the Court finds that the attorney's fee provisions in the Billingsley and Mart Produce invoices are enforceable, Hi-Land Potato is neither a party nor a third party beneficiary of either contract. See Skyline Response at 16. Skyline Potato and the Folson Farm Group maintain that the attorney's fee provision found in the Billingsley invoice contains language11 that "limits recovery of fees to the parties to the contract — namely Billingsley and Tan-O-On." Skyline Response at 16. With regard to the Mart Product invoice, Skyline Potato and the Folson Farm Group insist the "language refers to the collection of sums due under the invoice — a breach of contract claim based upon nonpayment by the produce buyer, Tan-O-On" and "the claim against Hi-Land is not a breach of contract claim." Skyline Response at 17. Skyline Potato and the Folson Farm Group also argue that Hi-Land Potato is not a third-party beneficiary of the invoices, because the "designation of a third party beneficiary to a contract requires evidence that the person claiming to be a third party beneficiary is an intended beneficiary" and no such evidence exists here. Skyline Response at 17.

Skyline Potato and the Folson Farm Group contend that Worley is not entitled to attorney's fees, because the Folson Farm Group did not assert any claims against him, and Skyline Potato's claims were dismissed long before trial. See Skyline Response at 19. Skyline Potato and the Folson Farm Group insist that, if the Court awards attorney's fees to Hi-Land Potato and Worley,

Skyline Response at 19-20.

Skyline Potato and the Folson Farm Group argue that there is no basis for the imposition of joint and several liability on Hi-Land Potato for attorney's fees in this matter. See Skyline Response at 21. They insist that courts are only able to impose joint-and-several liability for attorney's fees where there is joint-and-several liability for the underlying substantive claim, which does not exist in this case. See Skyline Response at 21. They further assert that, if the Court were to impose joint-and-several liability on Skyline Potato and the Folson Farm Group, it would lead to inequitable results, and would therefore be reversible error. See Skyline Response at 21. They explain: "Here, the equitable result would be for any award to be apportioned among [Skyline Potato], [the Folson Farm Group], Tan-O-On, Gerald Anderson and Julie Anderson based upon the amount of the total claims asserted against Hi-Land." Skyline Response at 21. They contend that the equitable apportionment of fees based on the amount of the claims asserted against Hi-Land Potato would be as follows: 89.02% to Tan-O-On Marketing and the Andersons, 3.57% to the Folson Farm Group, 2.19% to Mart Produce, 2.13% to Skyline Potato, 1.59% to Billingsley Produce, 1.34% to Alsum Produce, and 0.17% to Peterson Farms. See Skyline Response at 24. Finally, Skyline Potato and the Folson Farm Group dispute the reasonableness of the amount of attorney's fees that Hi-Land Potato and Worley sought, and request leave to conduct discovery on this issue if the Court finds that Hi-Land and Carl Worley are entitled to attorney's fees. See Skyline Response at 22-23.

8. Tan-O-On Marketing and the Andersons' Response.

Tan-O-On Marketing and the Andersons filed an opposition to the Motion on April 8, 2014. See Defendants'/Third Party Plaintiffs' Opposition to Hi-Land Potato Company, Inc., and Carl Worley's Motion for Award of Attorneys Fees and Costs, filed April 8, 2014 (Doc. 381)("Tan-O-On and Anderson Response"). Tan-O-On Marketing and the Andersons adopt the arguments that the Skyline Response sets forth. See Tan-O-On and Anderson Response at 2. In addition, Tan-O-On Marketing and the Andersons argue that "these are honest people who deserve their day in court without continued personal damage or penalties." Tan-O-On and Anderson Response at 2. Tan-O-On Marketing and the Andersons also renew the arguments they make in their Motion to Compel Discovery of Oral Deposition, filed June 21, 2012 (Doc. 207), and Motion for Sanctions Against Hi-Land Potato Company, Inc. and Carl Worley, Individually, filed September 18, 2012 (Doc. 279). See Tan-O-On and Anderson Response at 2-26. They argue that Shannon Casey did not participate in good faith throughout discovery. See Tan-O-On and Anderson Response at 2-17. They contend that his deposition testimony was evasive and obstructive, and as such, that they should not have to pay attorney's fees to the Defendants, who obstructed and prevented truthful testimony and evidence in this case. See Tan-O-On and Anderson Response at 26.

9. The Reply.

Hi-Land Potato and Worley replied on May 9, 2014. See Defendants and Third-Party Defendants Hi-Land Potato Company, Inc.'s and Carl Worley's Reply Brief in Support of Their Motion for Award of Attorney's Fees and Costs, filed May 9, 2014 (Doc. 387)("Reply"). Hi-Land Potato and Worley assert that general principles of trust law apply here and entitle them to attorney's fees as the prevailing party. See Reply at 2. They contend that Skyline Potato and the Folson Farm Group's change of heart regarding the applicability of general principles of trust law to this case is "intellectually indefensible." Reply at 2. Hi-Land Potato and Worley insist that Skyline Potato and the Folson Farm Group's claims hinged on the proposition that general principles of trust law broadly apply to PACA trusts and, according to Hi-Land Potato and Worley, "[t]he Court embraced that proposition." Reply at 1-2. Additionally, Hi-Land Potato and Worley argue that Skyline Potato and the Folson Farm Group based their own right to attorney's fees on general principles of trust law. See Reply at 2. Hi-Land Potato and describe Skyline Potato and the Folson Farm Group's argument that the general principles of trust law should apply only to their claims as a "one-way invocation of general trust law principles," resulting in an inequitable one-way right to attorney's fees. Reply at 2. Furthermore, Hi-Land Potato and Worley assert that the Court and other federal courts have previously determined that the 1984 amendments to PACA show Congress intended "to impose general trust principles on all parties to the PACA trust." Reply at 3. Hi-Land Potato and Worley therefore maintain that they are entitled to attorney's fees, because the general principles of trust law apply to their claims, and that the general principles of trust law hold a court may use its discretion to award fees to a prevailing party. See Reply at 3.

Hi-Land Potato and Worley argue that their basis for requesting attorney's fees is rooted in federal law, not state law, as Section 1004 of the New Mexico Uniform Trust Code "distills case law precedent throughout the United States, and thus reflects and embodies the general principles of trust law that Congress has incorporated into PACA." Reply at 4. They contend that PACA is the source of Hi-Land Potato's right to recover attorney's fees from the Plaintiff, and that PACA is a "federal law which incorporates general trust law principles, including Section 1004 and the case law precedent it embodies." Reply at 5. Hi-Land Potato and Worley maintain that state law does not displace federal law, but instead is incorporated into federal law. See Reply at 5.

In response to the Skyline Potato and the Folson Farm Group's argument regarding N.M. Stat. Ann. 1978, § 46A-2-203 (2007)("§ 203 of the New Mexico Uniform Trust Code"), Hi-Land Potato and Worley direct the Court's attention to the fact that "Section 203 allocates jurisdiction over trust disputes among different state courts; it does not affect federal court jurisdiction." Reply at 5. Moreover, Hi-Land Potato and Worley contend that there is "no legislative history or other evidence [which] suggests any intention to divest federal courts of their diversity or supplemental jurisdiction over disputes involving a trust, such as the Third-Party Plaintiffs' claims asserted herein." Reply at 5-6. Hi-Land Potato and Worley thus argue that the Court may apply § 1004 of the New Mexico Uniform Trust Code to Hi-Land Potato and Worley's claim for attorney's fees against Tan-O-On Marketing and the Andersons, because this Court possesses subject-matter jurisdiction. See Reply at 6.

Hi-Land Potato and Worley reject Skyline Potato and the Folson Farm Group's argument that "a PACA trust is not a trust covered by the UTC" and therefore the Uniform Trust Code does not apply to PACA trusts. Reply at 6. Hi-Land Potato and Worley argue that Skyline Potato and the Folson Farm Group "[did] not accurately quote UTC § 102" when it separated the statute into two prongs. Reply at 6. The unmodified reading of Section 102, according to Hi-Land Potato and Worley, states that the Uniform Trust Code includes "trusts created pursuant to a statute judgment or decree that requires the trust to be administered in the manner of an express trust." Reply at 6. Hi-Land Potato and Worley state: "Pursuant to the federal circuit court case law that the Court cited in its Findings and Conclusions, see Doc. 372, at 154, a PACA trust clearly is to be administered `in the manner of an express trust.'" Reply at 6. Hi-Land Potato and Worley therefore insist that the New Mexico Uniform Trust Code applies to PACA trusts. See Reply at 6. Hi-Land Potato and Worley maintain that Skyline Potato and the Folson Farm Group also misinterpret N.M. Stat. Ann. 1978, § 46A-1-402 ("§ 402 of the New Mexico Uniform Trust Code") when they argue that § 402 of the New Mexico Uniform Trust Code excludes PACA trusts, because produce suppliers become beneficiaries of the PACA trust automatically. Reply at 7. Hi-Land Potato and Worley argue that PACA trusts may meet the requirements of § 402 of the New Mexico Uniform Trust Code, but, even if they do not, Section 102 of the New Mexico Uniform Trust Code states that the New Mexico Uniform Trust Code applies to statutory trusts that are administered in the manner of express trusts, which include PACA trusts. See Reply at 7-8. Hi-Land Potato and Worley maintain that, even if PACA trusts do not fall under § 402, "Congress has directed courts to apply the general trust principles that the Uniform Trust Code embodies, i.e., as if the Uniform Trust Code did apply to a PACA trust." Reply at 9.

Hi-Land Potato and Worley again argue that the facts and equities of this case support an award of attorney's fees in their favor. See Reply at 8. Hi-Land Potato and Worley insist that Atwood v. Atwood stands for the proposition that a court may invoke its discretionary authority to award attorneys when a party prevails in a judicial proceeding that § 1004 of the New Mexico Uniform Trust Code contemplates. See Reply at 8. According to Hi-Land Potato and Worley, despite not winning on every issue before trial, as Skyline Potato and the Folson Farm Group mention, Hi-Land Potato and Worley ultimately prevailed in this lawsuit. See Reply at 9. Hi-Land Potato and Worley assert that they are not required to prove the opposing parties acted in bad faith or engaged in egregious misconduct to be awarded attorney's fees. See Reply at 9-11.

Hi-Land Potato and Worley reiterate their argument that the invoices used by Billingsley Produce and Mart Produce contain an attorney fee provision that provides Hi-Land Potato with a right to attorney's fees through the definition of the term "prevailing party." Reply at 11. They remind the Court that Skyline Potato and the Folson Farm Group relied on the attorney fee provision in the invoices, prevailed on this issue, and are now barred by judicial estoppel from changing their position on the matter. See Reply at 12.

In response to Skyline Potato and the Folson Farm Group's argument that the attorney fee provisions in the Billingsley Produce and Mart Produce invoices are unenforceable, because they amount to impermissible unilateral additions, Hi-Land Potato and Worley assert that Skyline Potato and the Folson Farm Group are unable to meet both elements required to prove an impermissible unilateral addition. See Reply at 12-15. Hi-Land Potato and Worley argue that, to show the attorney fee provision is unenforceable, Skyline Potato and the Folson Farm Group must show a material alteration of a term as well as surprise and hardship resulted from a change to the contract without the other parties' awareness. See Reply at 12-13. Hi-Land Potato and Worley insist that Skyline Potato and the Folson Farm Group will not be able to prove surprise, because the use of such attorney fee provisions is a standard practice in the produce supplier industry, Skyline Potato and the Folson Farm Group have been receiving invoices containing the same attorney fee provisions, and Skyline Potato and the Folson Farm Group even use these same attorney's fee provisions in their own invoices. See Reply at 13-15. Hi-Land Potato and Worley thus maintain the Billingsley Produce and Mart Produce invoices are enforceable, as Skyline Potato and the Folson Farm Group cannot show that the attorney fee provision resulted in surprise and hardship. See Reply at 14-15.

Hi-Land Potato and Worley argue that the language in the Billingsley Produce and Mart Produce invoices is broad enough to encompass Hi-Land Potato as an intended third-party beneficiary of the attorney's fee provisions. See Reply at 15-16. Hi-Land Potato and Worley maintain that the language common to both invoices states the "prevailing party" to "any" legal action resulting from the invoice is entitled to attorney's fees. Reply at 15-16. Hi-Land Potato and Worley urge the court to construe such ambiguities against the contract's drafters — Billingsley Produce and Mart Produce. See Reply at 15-16.

Hi-Land Potato and Worley further argue that the language in the attorney's fee provision that allows for a right to recover attorney's fees for "any act" necessarily means that the provision is not limited to recovery in breach-of-contract claims. Reply at 16-17. Hi-Land Potato and Worley direct the Court's attention to the fact that the case that Skyline Potato and the Folson Farm Group cite in support of their argument that the attorney fee provision is limited to contract claims is a case dealing with a contract that explicitly limits the attorney fee provision to contract claims only. See Reply at 17 (citing Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1337-37 (10th Cir.1984). Because the Billingsley Produce and Mart Produce contracts impose no such limitation, according to Hi-Land Potato and Worley, the case cited by Skyline Potato and the Folson Farm Group is not applicable here. See Reply at 17. Hi-Land Potato and Worley further argue:

Reply at 17-18.

Hi-Land Potato and Worley also insist that the Court should determine that Hi-Land Potato is an intended third-party beneficiary of the invoices. See Reply at 18. Hi-Land Potato and Worley state that, to be a third-party beneficiary, the contract's parties must have intended either expressly or impliedly to benefit the third-party. See Reply at 18. Hi-Land Potato and Worley contend that, here, the intent is unclear, and because contract ambiguities must be construed against the drafter, the Court should construe the provision broadly to extend, at a minimum, to all persons and entities that the seller might join as defendants in a suit to recover the amounts due for unpaid invoices, which includes Hi-Land Potato. See Reply at 18-19.

Hi-Land Potato and Worley argue that none of Skyline Potato and the Folson Farm Group's arguments for the allocation of Hi-Land Potato and Worley's attorney fees among Skyline Potato, the Folson Farm Group, Tan-O-On, and the Andersons are persuasive. See Reply at 19. Hi-Land Potato and Worley state that the case on which Skyline Potato and the Folson Farm Group rely does not establish a bright-line rule that the Court can impose joint-and-several liability for attorney's fees only where there is joint-and-several liability for the underlying claim. See Reply at 19-20. Hi-Land Potato argues that using the divisibility of liability for underlying claims as a guide to joint-and-several liability for attorney's fees is inappropriate where the fees are being awarded to a prevailing defendant, noting that it would be unfair for a prevailing defendant to be bound by the manner in which the claims it prevailed over were divided in litigation. See Reply at 20. Moreover, Hi-Land Potato and Worley insist that the fees incurred from the various claims and between the various parties are so similar and intertwined that it would be impossible to segregate the fees. See Reply at 20-22.

With regard to the Tan-O-On and Anderson Response, Hi-Land Potato and Worley argue that Tan-O-On Marketing and the Andersons provide no valid reason why Hi-Land Potato and Worley cannot recover attorney's fees. See Reply at 23. The Tan-O-On and Anderson Response does only two things: first, it adopts the arguments that the Skyline Response makes, and second, it recites a previous motion to compel discovery and motion for sanctions that Tan-O-On Marketing and the Andersons made. See Reply at 23. Hi-Land Potato and Worley remind the Court that it denied both the motion to compel discovery and the motion for sanctions. See Reply at 23. Hi-Land Potato and Worley thus urge the Court to find that Tan-O-On Marketing and the Andersons' rationale for denying Hi-Land Potato's attorney's fees application is baseless. See Reply at 23.

Finally, Hi-Land Potato and Worley argue that Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons waived their right to challenge the reasonableness of Hi-Land Potato and Worley's attorney's fees by not arguing this point in the Skyline Response, or in Tan-O-On and the Anderson Response. See Reply at 23-24. Hi-Land Potato and Worley insist that a party merely stating its desire to "conduct discovery" regarding the reasonableness of attorney's fees does not preserve the right to challenge reasonableness. Reply at 24.

10. The July 9, 2014, Hearing.

The Court held a hearing on July 9, 2014. See Transcript of Hearing (taken July, 9, 2014)("Tr.").12 With regard to Hi-Land Potato and Worley's motion for award of attorney's fees, the Court instructed the parties to address the following three issues: (i) whether federal law allows the award of attorney's fees; (ii) if so, whether it is appropriate to award attorney's fees under these circumstances; and (iii) whether the attorney's fee provisions in Billingsley Produce and Mart Produce's invoices apply to Hi-Land Potato or Worley. See Tr. at 2:18-3:3 (Court). In addition to these three issues, the parties also addressed the allocation of the fees and reasonableness of the fees. See Tr. at 102:21-128:8.

Hi-Land Potato and Worley stated that they did not do research on, and therefore did not know, if there is precedent showing trust principles being used in federal statutes or federal law. See Tr. at 3:24-4:10 (Bohnhoff, Court). Hi-Land Potato and Worley maintained, however, that their right to attorney's fees is rooted in general trust principles. See Tr. at 7:23-8:19 (Bohnhoff). According to Hi-Land Potato and Worley, Skyline and the Folson Farm Group's argument that the their request for attorney's fees must fail, because New Mexico state law does not apply, is not dispositive, because Hi-Land Potato and Worley are not relying on state law, but on general trust principles. See Tr. at 9:2-18 (Bohnhoff). Hi-Land Potato and Worley asserted that the Uniform Trust Code embodies general trust law principles and that PACA incorporates the Uniform Trust Code. See Tr. at 9:2-18 (Bohnhoff). They maintained that PACA therefore incorporates general trust principles. See Tr. at 8:16-19 (Bohnhoff). More specifically, Hi-Land Potato and Worley contended that general trust law gives the Court broad authority to award attorney's fees, especially when awarding fees to the prevailing party, and that general trust law, Hi-Land Potato and Worley insisted, is applicable and controlling here. See Tr. at 8:2-9:19 (Bohnhoff). In response to Skyline Potato and the Folson Farm Group's argument that the Uniform Trust Code does not apply to PACA trusts, Hi-Land Potato and Worley maintained that the Uniform Trust Code applies to PACA trusts, because the Uniform Trust Code applies to express trusts, and case law states PACA trusts are to be administered as express trusts. See Tr. at 10:4-11:5 (Bohnhoff).

Hi-Land Potato and Worley asked the Court to not deny attorney's fees based on the fact that "to date no Federal Court has awarded attorney's fees in a PACA case on the basis of ... equitable authority." Tr. at 11:6-12:12:24 (Bohnhoff). Hi-Land Potato and Worley argue that this is a rare case, because it involves a beneficiary suing another beneficiary. See Tr. at 11:22-1211 (Bohnhoff). They contend that most cases arising from PACA trusts involve a beneficiary suing a trustee, which generally award attorney's fees based on the PACA statute. See Tr. at 12:11-13 (Bohnhoff). Hi-Land Potato and Worley insisted that the lack of precedent allowing attorney's fees under these unusual conditions is no reason to assume attorney's fees cannot or should not be awarded. See Tr. at 12:14-18 (Bohnhoff).

Tr. at 11:22-12:18 (Bohnhoff).

Hi-Land Potato and Worley stated the New Mexico version of the Uniform Trust Code, N.M. Stat. Ann. 1978, § 46A-10-1004 (2003), authorizes the Court to award attorney's fees against the third-party plaintiffs, Tan-O-On Marketing and the Andersons, because their claims were premised on state law and not on federal law. See Tr. at 13:19-15:22 (Bohnhoff, Court). In response, Skyline Potato urged the Court to look to the Restatement, rather than the Uniform Trust Code, for guidance on what the trust law is and how the Court should decide this issue. See Tr. at 17:17-19:12 (Court, Pizzonia). Skyline Potato further argued that the Uniform Trust Code is directed at trusts arising in estate planning or the donative context, and not at the trusts created under PACA. See Tr. at 22:20-23:4 (Pizzonia).

Like Hi-Land Potato and Worley, Skyline Potato stated that it did not know of any federal statutes or areas of federal law in which trust principles have been used to determine whether to award attorney's fees. See Tr. at 22:2-13 (Court, Pizzonia). Skyline Potato argued, however, that the cases on which Hi-Land Potato and Worley rely "as federal trust precedent for this particular issue all have some aspect of vexatious or bad behavior by one of the parties." Tr. at 20:25-21:4 (Pizzonia). In response to this argument, the Court noted that, "if they've gotten to the point of awarding fees from an equitable standpoint for vexatious, they're assuming that equity allows them in the trust context to award fees." Tr. at 21:13-17 (Court). Finally, Skyline Potato insisted that PACA's drafters made a conscious choice to not include an attorney's fee provision. See Tr. at 23:4-16 (Pizzonia). Skyline Potato stated that it did not think "any case law ... exist[ed] to justify the granting of attorneys [fees] under PACA under general trust principles without a contract." Tr. at 23:11-14 (Pizzonia).

The Folson Farm Group joined Skyline Potato in arguing that PACA's drafters purposefully left out an attorney's fees provision and it would be wrong to apply general trust principles to award attorney's fees in this case. See Tr. at 23:20-24:18 (Esquivel). The Folson Farm Group conceded that trust principles may be used to fill the gaps in a statute when those principles are not in conflict with the statute, but argued that to do so here would be in conflict with the statute. See Tr. at 23:20-24:18 (Esquivel). The Folson Farm Group highlighted that "there is not a single case in this country where the uniform trust code has been applied to PACA." Tr. at 24:12-13 (Esquivel).

Tr. at 24:22-25:5 (Esquivel).

The Folson Farm Group stated that, if they had prevailed in the lawsuit, they would not have been entitled to attorney's fees under the principles which Hi-Land Potato and Worley advocate; instead, they would have been entitled to attorney's fees under PACA § 499(e), which states that a creditor can recover all sums owed in connection with a produce sale transaction. See Tr. at 25:6-28:23 (Esquivel). The Folson Farm Group argued that Hi-Land Potato could not have relied on this statute, because it was not a buyer or seller of the produce. See Tr. at 27:12-23 (Court, Esquivel).

Tan-O-On Marketing and the Andersons disagreed with Hi-Land Potato and Worley's argument that they are entitled to attorney's fees pursuant to state law, because the Andersons' claims were brought and argued under state law, and not federal law. See Tr. at 29:14-31:19 (Court, Robinson). The Andersons insisted that their claims were federal law claims, because, despite that some are state law claims, all arose from PACA transactions; thus, federal law was at the root of each of their claims. See Tr. at 29:14-31:19 (Court, Robinson).

Hi-Land Potato and Worley advanced several arguments in response to Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons' arguments why the Court does not have authority to grant Hi-Land Potato and Worley attorney's fees. See Tr. at 33:23-39:8 (Bohnhoff, Court). They again argued that the Andersons' claims were state law, not federal law, thus opening the door for the Court to award fees under state law. See Tr. at 35:6-10 (Bohnhoff). Hi-Land Potato and Worley also argued that general trust law principles are not limited to only filling in a statute's gaps, and therefore can be used to authorize the Court to award attorney's fees when PACA is silent. See Tr. at 37:24-38:9 (Bohnoff). Hi-Land Potato and Worley explained: "There [are] no limitations as articulated by the federal circuit courts in the incorporation of general trust law principles ...." Tr. at 38:4-7 (Bohnhoff). Hi-Land Potato and Worley argued that PACA is supposed to protect the parties, and it is therefore inconsistent to say that a defendant may be exposed to liability by a plaintiff under PACA, but only the plaintiff is entitled to recover attorney's fees. See Tr. at 38:18-39:8 (Bohnhoff). Hi-Land Potato and Worley insisted this one-way street to attorney's fees advocated by Skyline Potato and the Folson Farm Group is inequitable, and that the Court should not endorse it. See Tr. at 38:15-18 (Bohnhoff). Finally, Hi-Land Potato and Worley argued that, as a matter of equity, the Court should apply the general trust law principles as a means of leveling the playing field. See Tr. at 39:4-8 (Bohnhoff).

Following the parties' arguments regarding the issue whether the Court has authority to award attorney's fees in this case, the Court informed the parties that it tends to agree that it has the power under state law to shift fees in state law claims and that the Andersons' claims look like state law claims. See Tr. at 40:13-16 (Court).

The Court then moved to the issue whether, if federal law allows for the award of attorney's fees in this context, the Court should award attorney's fees in this particular case. See Tr. at 40:22-24 (Court). The Court began by asking why it should be the first court to hold that it is appropriate to apply general trust law principles to shift fees in a case where the beneficiaries are suing each other. See Tr. at 44:10-20 (Court). In response, Hi-Land Potato and Worley argue simply that it is the fair thing to do. See Tr. at 44:21-45:18 (Bohnhoff). Hi-Land Potato and Worley maintained that beneficiaries are supposed to be protected and that protection should not only be against trustees or corporations, but also against other beneficiaries. See Tr. at 47:7-14 (Bohnhoff). Hi-Land Potato and Worley argued that a beneficiary should be protected regardless of its status as a plaintiff or defendant. See Tr. at 47:7-14 (Bohnhoff). Hi-Land Potato and Worley maintained that shifting fees will allow the prevailing beneficiary to be put back in the "position it would have been had there been no lawsuit ...." Tr. at 48:14-16 (Bohnhoff). Hi-Land Potato and Worley were unable to answer the Court's question regarding why a beneficiary who successfully defeats claims brought against it by a fellow beneficiary should be allowed to shift fees, while an insurance company who defeats claims brought against it is not allowed to shift fees. See Tr. at 48:17-50:6 (Bohnhoff, Court). Hi-Land Potato and Worley argued that fee shifting is appropriate here, because Hi-Land Potato and Worley did nothing wrong with respect to the PACA trust, and yet they were the ones subjected to extensive litigation when Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons should have been suing the people responsible for the unpaid money. See Tr. at 51:9-53:19 (Bohnhoff).

Tr. at 53:20-54:9 (Bohnhoff).

Because Tan-O-On Marketing is the trustee and the Andersons are the control persons, Hi-Land Potato and Worley argued that case law allowing for the shifting of fees when a beneficiary prevails on a claim brought by a trustee support its right to attorney's fees. See Tr. at 54:10-55:20 (Bohnhoff, Court). Hi-Land Potato and Worley insisted that the Court should award the full amount of attorney's fees based on the fact that they are the prevailing parties; they contend that the Court should not reduce attorney's fees simply because they failed to prevail on every contention raised in the lawsuit. See Tr. at 56:2-58:7 (Bohnhoff, Court).

Skyline Potato and the Folson Farm Group argued they too are beneficiaries, which, according to the arguments that Hi-Land Potato and Worley make, entitles them to an elevated degree of protection. See Tr. at 59:4-10 (Esquivel). Skyline Potato and the Folson Farm Group also maintained that Hi-Land Potato was not a PACA trust beneficiary, and therefore is not equally situated with Folson Farm and Skyline Potato. See Tr. at 59:10-20 (Esquivel). Finally, Skyline Potato and the Folson Farm Group argued that it would be inequitable to award attorney's fees to Hi-Land Potato and Worley, because it would mean that they would be losing twice: they would not only lose the money owed to them for their product, but would also be liable for attorney's fees and costs. See Tr. at 59:21-60:9 (Esquivel).

The Andersons argued that they should not be punished for using the United States justice system. See Tr. at 70:20-21 (Robinson). They further asserted that they had lost their retirement, their company, their livelihood, and their wealth, and therefore, it would be unfair for the Court to award attorney's fees to Hi-Land Potato and Worley. See Tr. at 71:13-15 (Robinson). Hi-Land Potato and Worley responded by stating that, while Atwood v. Atwood states that a court may consider a party's ability to pay attorney's fees, the Andersons have not provided any evidence showing that they are financially unable to pay Hi-Land Potato and Worley's attorney's fees. See Tr. at 72:19-74:2 (Bohnhoff, Court).

Hi-Land Potato further argued that the Court would not be the first court to shift attorney's fees against a beneficiary, stating, with regard to Atwood v. Atwood:

Tr. at 75:19-16:1 (Bohnhoff).

Answering the Court's question regarding the extent of the discretion to award attorney's fees, Hi-Land Potato and Worley maintained the Court has broad discretion to award attorney's fees and should look to the standards that govern the Court's exercise of discretion in other contexts. See Tr. at 76:8-77:5 (Bohnhoff, Court). Those standards, Hi-Land Potato argued, find abuse of discretion where a court mischaracterizes the law, applies the wrong law, or relies of something not in the record. See Tr. at 76:19-77:5 (Bohnhoff). Thus, Hi-Land Potato insisted that the Court's risk of abusing its discretion is no different here than in other contexts. See Tr. at 76:8-77:5 (Bohnhoff, Court). The Court advised the parties that it was "not inclined ... to shift fees to either the plaintiffs, intervening plaintiffs, or the Tan-O-On group." Tr. at 80:3-5 (Court).

The Court next addressed the issue whether the attorney's fee provisions in the Billingsley Produce and Mart Product invoices provide attorney's fees for Hi-Land Potato and Worley. See Tr. at 80:9-10 (Court). Hi-Land Potato and Worley largely stuck to their briefing with regard to their right to attorney's fees as a third-party beneficiaries under the attorney's fee provision in the Billingsley Produce and Mart Produce invoices. See Tr. at 81:2-85:5 (Bohnhoff, Court). Generally, Hi-Land Potato argued that the attorney fee provisions are enforceable and that Hi-Land Potato can take advantage of those attorney fee provisions. See Tr. at 82:2-85:5 (Bohnhoff, Court).

In response, the Folson Farm Group argued that the contract language of the contract was not ambiguous. See Tr. at 86:11-13 (Court, Esquivel). The Folson Farm Group insisted that the language made it clear that the invoices' attorney's fee provisions applied to the seller and buyer only, and were limited to breach-of-contract claims. See Tr. at 86:23-87:14 (Esquivel). The Folson Farm Group also contended that, to prove that the contract was valid under Uniform Commercial Code, § 2-207 and N.M. Stat. Ann. 1978, § 55-2-207 (1961), Hi-Land Potato and Worley had to show that Tan-O-On Marketing was not unfairly surprised and had not suffered any hardship as a result of the attorney's fee provision such that it constituted a material alteration to the contract. See Tr. at 87:22-91:10 (Court, Esquivel). The Folson Farm Group further argued Hi-Land Potato and Worley did not satisfy this burden, and therefore did not show that the attorney's fee provision invalidated the invoice pursuant to the Uniform Commercial Code § 2-207. See Tr. at 87:22-91:10 (Court, Esquivel). Finally, the Folson Farm Group asserted that Hi-Land Potato is not a third-party beneficiary of the invoice, because Hi-Land Potato failed to show intent for the invoice to benefit third-parties or anyone other than Tan-O-On Marketing, Billingsley Produce, or Mart Produce. See Tr. at 91:11-92:1 (Esquivel).

Citing to Cooseman's Specialties, Inc. v. Gargiulo, 485 F.3d 701, 708 (2d Cir.2007), Hi-Land Potato and Worley argued that the burden to prove unfair surprise and hardship belongs to the party asserting that the attorney fee provision in the invoice constitutes a material alteration. See Tr. at 93:15-94:25 (Bohnhoff). Hi-Land Potato and Worley insisted, however, that this burden could not be satisfied, because Tan-O-On Marketing not only previously used the attorney's fee provisions at issue here, but the provisions were also considered a usage of trade in PACA invoices. See Tr. at 94:9-11 (Bohnhoff). Thus, according to Hi-Land Potato and Worley, there is no way Tan-O-On can be said to have been unfairly surprised by these attorney's fees provisions. See Tr. at 94:23-25 (Bohnhoff). Hi-Land Potato and Worley then renewed their argument that the language concerning the attorney fee provision's scope was ambiguous, and therefore should be construed against Billingsley Produce and Mart Produce, the drafters of the invoice. See Tr. at 95:1-13 (Bohnhoff). Hi-Land Potato and Worley argued that "the Court should conclude on this independent basis separate and apart from the equitable authority issue that Billigsley and Mart Produce should be liable for Hi-Land's attorneys' fees." Tr. at 95:18-22 (Bohnhoff). The Court responded by stating that it was struggling to see "how the parties would have intended ... this invoice to benefit third parties like Hi-Land." Tr. 102:4-6 (Court). The Court further stated that "It seems ... they just wrote very broad provisions that probably were meant to operate just like the other producers[']." Tr. 102:15-17 (Court).

Hi-Land Potato largely stuck to its briefing with regard to the issue of allocation, stating that the parties should be jointly and severally liable for the fees as the parties engaged in a common attack against Hi-Land Potato and that it would be impossible to determine what fees were spent defending against which claims. See Tr. at 102:21-109:6 (Bohnhoff). Hi-Land Potato further argued that there is no basis to apportion the fees based on the relative amounts of the claims brought against it. See Tr. at 106:10-109:6 (Bohnhoff). Hi-Land Potato stated that, if Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons want to divide the fees based on the amounts claimed, such an award is something they should settle amongst themselves. See Tr. at 108:14-109:6 (Bohnhoff). Hi-Land Potato and Worley explained: "[t]hey should be held jointly and severally liable to the extent of the amounts that I provided the Court and then if they wish they can approach the Court for some contribution determination about how much the plaintiff should pay versus how much the third party plaintiff should pay." Tr. at 109:1-6 (Bohnhoff).

Hi-Land Potato and Worley clarified that Worley is not entitled to recover attorney's fees from Skyline Potato or the Folson Farm Group; however, Hi-Land Potato and Worley contend that fact does not reduce the amount of attorney's fees owed to Hi-Land Potato. See Tr. at 111:8-112:7 (Bohnhoff, Court, Esquivel). Hi-Land Potato and Worley explained: "Mr. Worley didn't pay the attorneys' fees. All the money [counsel for Hi-Land Potato and Worley] received came from Hi-Land and ... any defense work that was done defending Mr. Worley against the claims being made against him necessarily was also conducted in defense of Hi-Land." Tr. at 111:22-112:2 (Bohnhoff). Hi-Land Potato and Worley confirmed that they are arguing that Hi-Land Potato, not Worley, is entitled to attorney's fees against Skyline Potato and the Folson Farm Group. See Tr. at 112:4-7 (Bohnhoff, Court).

The Folson Farm Group advocated for the Court to apportion the attorney's fees based on the relative amount of the claims brought against Hi-Land Potato in the event that the Court determines it should award attorney's fees. See Tr. at 112:10-113:25 (Esquivel). The Folson Farm Group argued that all of Hi-Land Potato's arguments are based on equity, but there is no equity in making a party pay sixty-five times the amount of the claim that it asserted. See Tr. at 112:19-114:7 (Esquivel). The Folson Farm Group stated that allocation is appropriate, and that "to do otherwise would hold each of these creditors liable for many, many more times in fees than the amount that they're claiming." Tr. at 113:18-21 (Esquivel). In response, Hi-Land Potato insisted that the "plaintiffs should have thought about the size of their claim versus the litigation that they were starting before they joined the lawsuit." Tr. at 126:5-8 (Bohnhoff).

The Folson Farm Group argued that, if the Court decides to award attorney's fees to Hi-Land Potato, the Court should hold an evidentiary hearing to determine the reasonableness Hi-Land Potato's attorney's fees. See Tr. at 114:1-117:7 (Court, Esquivel). The Folson Farm Group also maintained that it did not waive its right to challenge the reasonableness of the attorney's fees, as it contested them in its brief. See Tr. at 116:14-18 (Court, Esquivel).

The Andersons' argued that the attorney's fees charged by Hi-Land Potato's attorneys were exorbitant. See Tr. at 117:9-120:21 (Court, Robinson). Hi-Land Potato and Worley responded by stating:

Tr. at 123:2-9 (Bohnhoff). Hi-Land Potato and Worley explained: "[N]either the plaintiffs nor the intervening plaintiffs nor the third party plaintiffs get two bites at the apple. They failed to make any effort at the time they filed their response to address the reasonableness of attorneys' fees. They can't get a second chance now." Tr. at 126:24-127:4 (Bohnhoff). In supporting the reasonableness of its attorney's fees, Hi-Land Potato and Worley stuck to their briefing. See Tr. at 122:21-125:23 (Bohnhoff). The Court concluded by again stating that it was not inclined to grant the motion for attorney's fees. See Tr. at 128:8-24 (Court).

RELEVANT LAW REGARDING THE AWARD OF ATTORNEY'S FEES

Hi-Land Potato and Worley argue the circumstances of this case provide the Court with several reasons to award attorney's fees against Tan-O-On Marketing, the Andersons, Skyline Potato, and the Folson Farm Group. For the Court to award attorney's fees to Hi-Land Potato and Worley, it would have to set aside the long-standing tradition of the American Rule. The Court must consider whether Hi-Land Potato and Worley have a statutory right to attorney's fees, a contractual right to attorney's fees, or whether general trust law principles support the award of attorney's fees under the circumstances of this case.

1. Law Regarding Attorney's Fees under the American Rule.13

"As a general rule, trial courts are without authority to award attorney's fees unless the right exists by contract or statute." Paramount Pictures Corp. v. Thompson Theaters, Inc., 621 F.2d 1088, 1091 (10th Cir.1980). New Mexico also follows the "American Rule" with respect to attorney's fees. Craft v. Sunwest Bank of Albuquerque, 84 F.Supp.2d 1226, 1238-39 (D.N.M.1999)(Black, J.); Monsanto v. Monsanto, 1995-NMCA-048, ¶ 7, 119 N.M. 678, 894 P.2d 1034, 1036-37. "The American Rule is shorthand for the general rule that in the absence of legislation providing otherwise, litigants must pay their own attorney's fees." Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 415, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). See Garcia v. Jeantette, 2004-NMCA-004, ¶ 16, 134 N.M. 776, 82 P.3d 947, 951 ("[G]enerally, a party may recover attorney fees only when authorized by statute, court rule, or an agreement expressly providing for their recovery." (citing Monsanto v. Monsanto, 1995-NMCA-048, ¶ 7, 119 N.M. 678, 894 P.2d at 1037)); Craft v. Sunwest Bank of Albuquerque, 84 F.Supp.2d 1226, 1238-39 (D.N.M.1999)("In the absence of statutory authority to the contrary, parties pay their own attorney's fees."); Credit Inst. v. Veterinary Nutrition Corp., 2003-NMCA-010, ¶ 38, 133 N.M. 248, 62 P.3d 339, 347 ("As a general rule, litigants are responsible for their own attorney fees absent statutory authority or some other authority such as a contract allowing such fees.")(quoting Springer Group, Inc. v. Wittelsohn, 1999-NMCA-120, ¶ 23, 128 N.M. 36, 988 P.2d 1260, 1266)). Exceptions to the American Rule include: (i) statutory basis; (ii) enforceable contract; (iii) willful violation of court order; (iv) bad faith action; and (v) litigation creating common fund for the benefit of others. See E. Armata, Inc. v. Platinum Funding Corp., 887 F.Supp. 590, 594 (S.D.N.Y.1995)(Patterson, J.)(citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 257-59, 95 S.Ct. 1612).

2. Law Regarding Attorney's Fees Under PACA.

"Although some courts have granted attorneys' fees in cases alleging a breach of PACA trust, those courts have acknowledged that PACA does not expressly provide for attorneys' fees." Overton Distributors, Inc. v. Heritage Bank, 179 F.Supp.2d 818, 835 (M.D.Tenn.2002)(Nixon, J.)(citing Golman-Hayden Co., Inc. v. Fresh Source Produce, Inc., 27 F.Supp.2d 723, 728 (N.D.Tex. 1998)). While the American Rule generally governs the award of attorney's fees, the common funds exception to the American Rule may apply to cases involving PACA trusts because the trust creates a common fund.

Golman-Hayden Co., Inc. v. Fresh Source Produce, Inc., 217 F.3d 348, 352 (5th Cir.2000). "A common fund is a trust having multiple parties sharing an interest." Golman-Hayden Co., Inc. v. Fresh Source Produce, Inc., 217 F.3d 348 at 352. Some courts have awarded fees in PACA claims pursuant to the common-fund exception to the American Rule. See Golman-Hayden Co., Inc. v. Fresh Source Produce, Inc., 217 F.3d 348 at 352. Conversely, other courts have refused to award attorney's fees from a common fund created under PACA, "concluding that the common fund exception does not apply to PACA." Golman-Hayden Co., Inc. v. Fresh Source Produce, Inc., 217 F.3d 348 at 352. See Overton Distributors, Inc. v. Heritage Bank, 179 F.Supp.2d at 835 (explaining that it would not award attorneys' fees to a PACA trustee, because, "PACA was passed to allow produce sellers to recover funds held in trust, and that it would violate the purpose of the PACA statute to allow fees to be paid out of that fund. Additionally, the PACA statute does not authorize the payment of separate attorneys' fees.").

Courts have also interpreted the absence of a provision under Section 499e(c)(2) of PACA explicitly allowing for the award of attorney's fees to mean that Congress did not intend for attorney's fees to be awarded in cases brought pursuant to Section 499e(c)(2). See E. Armata, Inc. v. Platinum Funding Corp., 887 F.Supp. at 594. An analysis with respect to attorney's fees should begin with the presumption that the American Rule applies. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)("Congress legislates against the strong background of the American Rule."); Key Tronic Corp v. United States, 511 U.S. 809, 814-815, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)("[A]ny analysis of what Congress intended starts with the presumption that fees are not recoverable."); Ruckelshaus v. Sierra Club, 463 U.S. 680, 683, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)(explaining that, when construing an attorney's fee provision, "[o]ur basic point of reference is the American Rule"). To award fees under the statutory basis exception "requires a determination that Congress intended to set aside this longstanding American rule of law." Key Tronic Corp. v. United States, 511 U.S. at 815, 114 S.Ct. 1960 (citations omitted)(citing Runyon v. McCrary, 427 U.S. 160, 185-86, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)). Congress must explicitly allow for the award of attorney's fees. See Key Tronic Corp. v. United States, 511 U.S. at 815, 114 S.Ct. 1960 (explaining that a statute offering "mere generalized commands" fails to provide a "sufficient degree of explicitness" to warrant the award of attorney's fees); Unbelievable, Inc. v. N.L.R.B., 118 F.3d 795, 804 (D.C.Cir.1997)("[T]o determine that the Congress intended to set aside this longstanding American rule of law there must be more in the statute than generalized commands or a broad remedial commission.")(citing Runyon v. McCrary, 427 U.S. at 185-86, 96 S.Ct. 2586). In the absence of explicit congressional authority for fee shifting, attorney's fees should not be awarded. See Unbelievable, Inc. v. N.L.R.B., 118 F.3d at 802 ("The Supreme Court ... treats congressional silence in a particular statute as an indication that the legislature did not intend to authorize fee shifting.").

Congress explicitly provided an award of attorney's fees under PACA § 499g(c) if an appellant successfully appeals from a reparation order14 for a Section 499b violation.

7 U.S.C.A. § 499g(c) (emphasis added). Congress did not, however, provide any instruction regarding attorney's fees for claims brought pursuant to § 499e.

7 U.S.C.A. § 499e(c). Courts have interpreted this provision to mean that Congress did not intend to award attorney's fees pursuant to § 499e to trust beneficiaries under PACA. See E. Armata, Inc. v. Platinum Funding Corp., 887 F.Supp. at 594 ("Since Congress provided in PACA for the award of attorneys fees under section 499g(c) following an appeal pursuant to section 499b, the absence of a similar provision for attorneys fees in section 499e(c)(2) is further evidence that Congress did not intend to award attorney's fees to trust beneficiaries under PACA.")(internal quotation marks and citations omitted)(citing In re W.L. Bradley Co., Inc., 78 B.R. 92, 95-96 (Bankr.E.D.Pa. 1987)).

In re Fleming Companies, Inc. 316 B.R. 809, 815-16 (D.Del.2004)(Robinson, J.); In re Dixie Produce & Packaging, L.L.C., 368 B.R. 533, 538-39 (Bankr.E.D.La. 2007)(Brown, J.)("The court finds it significant that PACA does not provide such statutory authorization for attorneys' fees. Congress certainly knew how to provide for attorneys' fees in PACA when it intended to do so." (internal citations omitted)).

3. Law Regarding a Contractual Right to Attorney's Fees.15

"In addition to a statutory basis, attorney fees can be awarded if there is a contractual basis for them." In re Fleming Companies, Inc., 316 B.R. at 815 (citing Middle Mountain Land and Produce Inc. v. Sound Commodities, 307 F.3d 1220, 1225 (9th Cir.2002)). Several courts have held that an invoice containing an attorney's fee provision may provide a contractual basis for the award of attorney's fees under PACA. See Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 709 (2d Cir. 2007)("[W]e agree with our sister circuits that where the parties' contracts include a right to attorneys' fees, they can be awarded as `sums owing in connection with' perishable commodities transactions under PACA.")(quoting 7 U.S.C. § 499e(c)(2))(citing Country Best v. Christopher Ranch, LLC, 361 F.3d 629, 632 (11th Cir.2004); Middle Mountain Land and Produce Inc. v. Sound Commodities, 307 F.3d at 1222-25; Movsovitz & Sons of Fla. v. Axel Gonzalez, Inc., 367 F.Supp.2d 207, 215 (D.P.R.2005)(Casellas, J.); JC Produce v. Paragon Steakhouse Rests., 70 F.Supp.2d 1119, 1123 (E.D.Cal.1999)(Levi, J.)). An attorney's fee provision may however be unenforceable if it is an additional provision to the contract that materially alters the contract. See N.M. Stat. Ann. 1978, § 55-2-207; American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d 1185, 1189-92 (10th Cir.1992).

Whether an additional provision to a contract constitutes a material alteration depends on the case's facts. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1190. A provision materially alters the contract if it "result[s] in surprise or hardship if incorporated without the express awareness by the other party." Comment 4, N.M. Stat. Ann. 1978, § 55-2-207; Comment 4 to U.C.C. § 2-207. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1189. The party who asserts material alteration has the burden of proof. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1192 n. 9 ("[P]aragraph 2-207(2)(b) presumes the inclusion of the additional clause unless one of the three exceptions is met. Thus the party opposing the inclusion of an added term bears the burden of proving an exception.")(internal quotation marks and citations omitted)(citing Comark Merchandising, Inc. v. Highland Group, Inc., 932 F.2d 1196, 1201 (7th Cir.1991); Dale R. Horning Co., 730 F.Supp. 962, 966 (S.D.Ind.1990)).

With regard to surprise, the court must determine whether a party to the contract knew or should have known of the additional provisions. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1191; Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d at 708. Therefore, both a subjective and objective analysis is necessary to determine whether a party to a contract was surprised. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1191; Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d at 708. The subjective analysis is necessary to determine if the party was aware of the additional term, and the objective analysis is necessary to determine if the party should have been aware of the additional term. See Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d at 708. When determining whether an additional term unreasonably surprised a party to a contract, there are many objective factors a court should consider such as: (i) prior course of dealing and the number of contracts exchanged between the parties; (ii) industry custom; (iii) whether the addition was clearly marked; and (iv) whether a party includes an attorney fees provision in its own standard contract forms. See American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1191-92 (remanding the case to the district court to apply the "appropriate criteria" for determining unreasonable surprise.)

With regard to hardship, the Tenth Circuit has held that "[i]n a transaction involving the sale of goods the analysis of the existence of hardship focuses on whether the clause at issue would impose substantial economic hardship on the nonassenting party." American Ins. Co. v. El Paso Pipe and Supply Co., 978 F.2d at 1191 (citing Dale R. Horning Co., 730 F.Supp. at 967).

As a general rule, "one who is not a party to a contract cannot maintain suit upon it." Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶ 4, 112 N.M. 48, 811 P.2d 81, 82. Despite this general rule, a third party may be a beneficiary of a contract, and may, as a beneficiary, have enforceable rights against another party to the contract. See Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶ 4, 112 N.M. 48, 811 P.2d at 82. "There are two classes of third-party beneficiaries: intended beneficiaries and incidental beneficiaries." Tarin's Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 129 N.M. 185, 3 P.3d 680, 685-86. The Supreme Court of New Mexico has explained:

Callahan v. New Mexico Federation of Teachers-TVI, 2006-NMSC-010, ¶ 20, 139 N.M. 201, 131 P.3d 51, 58 (internal quotations omitted)(citing Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶¶ 1-4, 112 N.M. 48, 811 P.2d at 82-83). See Great American Ins. Co. of New York v. W. States Fire Prot. Co., 730 F.Supp.2d 1308, 1316 (D.N.M.2009)(Browning, J.).

Tarin's Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 129 N.M. 185, 3 P.3d at 686 (internal quotations and citations omitted). "The burden is on the person claiming to be a third-party beneficiary to show that the parties to the contract intended to benefit him." Fundamental Administrative Services, LLC v. Patton, 504 Fed.Appx. 694 (10th Cir.2012)(quoting Tarin's, Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 129 N.M. 185, 3 P.3d at 686).

4. Law Regarding Attorney's Fees Under General Trust Principles.

The United States Courts of Appeals, in construing PACA, have uniformly held that "[t]he interpretation of PACA trust interests is guided by general trust principles to the extent there is no conflict with the statute." In re Arctic Exp. Inc., 636 F.3d 781, 798 (6th Cir.2011)(quoting Consumers Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d 1374, 1381 (3d Cir. 1994)). See R Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d 238, 242 (2d Cir.2006)(noting that the United States Court of Appeals for the Second Circuit has "previously noted that PACA trusts are `governed by general principles of trust law'")(quoting Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 615 (2d Cir.1998)); Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d 163, 167 (3d Cir.2010)("General trust principles of trust law apply to trusts created under PACA ....")(quoting Nickey Gregory Co., LLC v. AgriCap, LLC, 597 F.3d 591, 595 (4th Cir.2010)); Reaves Brokerage Co., Inc. v. Sunbelt Fruit & Vegetable Co., Inc., 336 F.3d 410, 413 (5th Cir.2003)("General principles of trust law govern PACA trusts."); Boulder Fruit Exp. & Heger Organic Farm Sales v. Transp. Factoring, Inc., 251 F.3d at 1271 ("We apply general trust principles to questions involving the PACA trust, unless those principles directly conflict with PACA."); Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997)("General principles of trust law govern the PACA trust ...."). That general trust principles guide the interpretation of PACA trust interests is consistent with § 499e(2)'s plain language, which expressly uses the word trust, indicating Congress' intent that PACA trusts be administered under general trust principles like any other trust. See In re Arctic Exp. Inc., 636 F.3d at 794 (6th Cir.2011)(noting that "common law principles apply to the formation of [Congress' numerous] statutory trusts").

The Courts of Appeals have consistently looked to the Restatement of the Law of Trusts to provide guidance regarding the general principles of trust law.16 The Restatement of the Law of Trusts "draws both on court decisions and on statutes, seeking a seamless statement of the best principles of American trust law and offering intellectual guidance to legislatures, judges, and especially to those who counsel trustees and beneficiaries and seek to draft instruments that reflect the lawful intentions of donors." Restatement (Third) of Trust Law foreword (Am. Law Inst. 2003). The Restatement's purpose is:

Restatement (First) of Trusts intro. note (Am. Law Inst. 1935). "The object of the [American Law] Institute is accomplished in so far as the legal profession accepts the Restatement as prima facie a correct statement of the general law of the United States." Restatement (First) of Trusts intro. note (Am. Law Inst. 1935). The Restatement (Third) of Trusts contains two provisions regarding attorneys fees and costs. Section 88, Power to Incur and Pay Expenses, states: "A trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust and to the experience, skills, responsibilities, and other circumstances of the trustee." Restatement (Third) of Trusts, § 88. Section 100, Liability of Trustee for Breach of Trust, states:

A trustee who commits a breach of trust is chargeable with

(a) the amount required to restore the values of the trust estate and trust distributions to what they would have been if the portion of the trust affected by the breach had been properly administered; or

(b) the amount of any benefit to the trustee personally as a result of the breach. Restatement (Third) of Trusts, § 100.

Restatement (Third) of Trusts, § 100, ct. b(2). The Court has not found any Restatements or comments to the Restatements regarding the award of attorney's fees between co-beneficiaries of a trust.

"The Uniform Trust Code was drafted in close coordination with the writing of the Restatement third." Unif. Trust Code (2000) Refs & Annos. "The Uniform Trust Code (2000) is the first national codification of the law of trusts." Unif. Trust Code (2000) Refs & Annos. "The Uniform Trust Code, although comprehensive, does not legislate on every issue. Its provisions are supplemented by the common law of trusts and principles of equity." Unif. Trust Code (2000) Refs & Annos. The National Conference of Commissioners on Uniform State Laws promulgates the Uniform Trust Code. Unif. Trust Code (2000) Refs & Annos. "It is the purpose of the Conference to promote uniformity in the law among the several states on subjects as to which uniformity is desirable and practicable." Uniform Law Commission, http://www.uniformlaws.org (last visited April 21, 2016). The Uniform Trust Code has eleven articles. See Uniform Trust Code Table of Contents. Article 10 is titled "Liability of Trustees and Rights of Persons Dealing with Trustee." Unif. Trust Code §§ 1001-13 (Unif. Law Comm'n 2000). Article 10, § 1004 of the Uniform Trust Code, titled "Attorneys Fees and Costs," states: "In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy." Unif. Trust Code § 1004 (Unif. Law Comm'n 2000). The official comment to § 1004 of the Uniform Trust Code states:

Unif. Trust Code § 1004 Cmt. (Unif. Law Comm'n 2000).

The New Mexico Legislature enacted House Bill 48, which provides a "largely faithful adoption of the Uniform Trust Code."17 H.B. 48, 46th Leg. (2003). D. English, The New Mexico Uniform Trust Code, 34 N.M. L. Rev. 1, 1 (2004). The New Mexico Uniform Trust Code ("NMUTC"), which was drafted in connection with the revision of the Restatement of Trusts, and the Restatement of Trusts is an important source of materials for interpreting the NMUTC. See English, supra, 34 N.M.L. Rev. at 2-3. Even after New Mexico's adoption of the NMUTC, New Mexico courts continue to rely on the Restatement of Trusts to inform their interpretation of trust law. See State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 103, 149 N.M. 330, 248 P.3d 878, 906 (citing Restatement (Third) of Trusts § 86, cmt. b (2007)); In re Cable Family Trust, 2010-NMSC-017, ¶ 12, 148 N.M. 127, 231 P.3d 108, 111 (citing the Uniform Trust Code, N.M. Stat. Ann. 1978, §§ 46A1-101 to 46A-11-1105 (2003, as amended through 2009) and Restatement (Third) of Trusts § 4 (2003)). The NMUTC contains an "attorneys fees and costs" provision identical to § 1004 of the Uniform Trust Code. N.M. Stat. Ann. 1978, § 46A-10-1004 (2003). Section 1004 of the NMUTC states: "In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy." N.M. Stat. Ann. 1978, § 46A-10-1004 (2003). The editor's comments also state that § 1004 of the NMUTC is based upon § 1004 of the Uniform Trust Code. See N.M. Stat. Ann. 1978, § 46A-10-1004 (2003). In the sole New Mexico case addressing § 1004 of the NMUTC, the New Mexico Court of Appeals stated:

Khalsa v. Puri, 2015-NMCA-027, ¶ 72, 344 P.3d 1036, 1053.

Other jurisdictions that have adopted the Uniform Trust Code have held that statutes equivalent to § 1004 of the Uniform Trust Code "provide a statutory exception to the American Rule ... when justice and equity may require that fees, costs, and expenses be awarded." Atwood v. Atwood, 25 P.3d 936, 947 (2001 Okla.Civ. App.). The phrase "as justice and equity may require" has been interpreted to "serve two functions, first as a criterion for entitlement and second, as a measure of the size of the award." Atwood v. Atwood, 25 P.3d at 947. Further, "the phrase connotes fairness and invites flexibility in order to arrive at what is fair on a case by case basis." Atwood v. Atwood, 25 P.3d at 947. When determining whether justice and equity require the award of attorney's fees, courts have considered the following non-exhaustive factors:

Atwood v. Atwood, 25 P.3d at 947; In re Trust No. T-1 of Trimble, 826 N.W.2d 474, 491 (Iowa 2013); Garwood v. Garwood, 233 P.3d 977, 986 (Wyo.2010).

The case law applying and interpreting statutes equivalent to Section 1004 of the Uniform Trust Code concerns litigation between a trustee and a beneficiary. The Court has not found, however, case law interpreting § 1004 of the Uniform Trust Code or an equivalent statute with respect to litigation between co-beneficiaries.

ANALYSIS

To determine whether Hi-Land Potato and Worley are entitled to an award of attorney's fees against Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons, the Court must first determine whether the Motion is timely. Second, if timely, to determine whether the circumstances of this case provide sufficient reason to not strictly apply the American Rule, the Court must consider the following questions: (i) whether Hi-Land Potato and Worley have a contractual right to attorney's fees; (ii) whether Hi-Land Potato and Worley have a statutory right to attorney's fees under PACA; (iii) whether the common fund exception to the American Rule applies to PACA; and (iv) whether general trust principles provide Hi-Land Potato and Worley with a right to attorney fees. The Court concludes that, although general trust principles provide the Court with the authority to award attorney's fees against Skyline Potato and the Folson Farm Group, a fee shift would be inappropriate here.

I. HI-LAND POTATO AND WORLEY'S MOTION IS TIMELY.

Hi-Land Potato and Worley's motion is timely.

D.N.M. LR-Civ. 54.5(A). The Court entered final judgment on January 31, 2014. See Final Judgment at 1. Hi-Land Potato and Worley filed their Motion, Brief in Support of Motion, the Bohnhoff Dec., and the Reid Dec. twenty-eight days later, on February 28, 2014. The Motion is therefore timely.

II. THE COURT WILL NOT SHIFT FEES.

There can be no dispute that Skyline Potato's, the Folson Farm Group's, Tan-O-On Marketing's, and the Andersons' decisions to file this lawsuit, seek significant damages, and then vigorously pursue the action through final judgment forced Hi-Land Potato and Worley to incur hundreds of thousands of dollars in attorney's fees and costs. The Court will not, however, shift attorney's fees. The Court concludes that: (i) Hi-Land Potato and Worley do not have a contractual right to attorney's fees; (ii) Hi-Land Potato and Worley do not have a statutory right to attorney's fees under PACA; (iii) the common-fund exception to the American Rule does not apply to PACA in this case; and (iv) general trust principles provide the Court with authority to award attorney's fees, but the Court declines to do so under the circumstances of this case.

A. HI-LAND POTATO AND WORLEY DO NOT HAVE A CONTRACTUAL RIGHT TO ATTORNEY'S FEES.

Hi-Land Potato and Worley maintain that the attorney's fee provisions in the Mart Produce invoice, and the Billingsley invoice, provide Hi-Land Potato18 with a contractual right to attorney's fees. See Brief in Support of Motion at 14-16; Reply at 11-19. The Billingsley invoice states:

Billingsley invoice. The Mart Produce invoice states:

Mart Produce invoice. Hi-Land Potato argues that it is entitled to attorney's fees, because it is a third-party beneficiary of the Billingsley and the Mart Produce invoices, and that the invoices' language allows for the award of attorney's fees to the prevailing party. See Reply at 15. The Court is not persuaded, and concludes that Hi-Land Potato is not an intended beneficiary of the attorney's fee provision of the Billingsley and Mart Produce invoices.

The Court must first interpret the Billingsley and Mart Produce invoices. In this case, the Court has federal question jurisdiction with respect to the PACA claims, and has supplemental jurisdiction over the fraudulent transfer, unjust enrichment, and trade secrets claims. See 28 U.S.C. § 1367(a). Generally, when a federal court sits in diversity jurisdiction, the court applies the forum state's choice-of-law rules to determine which state's substantive law to apply. See Mosley v. Titus, 762 F.Supp.2d at 1313-14 (stating that, when a court's jurisdiction rests on diversity of citizenship under § 1332, "the court should look to the forum state's choice-of-law rules to determine which state's substantive law to apply"); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. at 496-97, 61 S.Ct. 1020; Pepsi-Cola Bottling Co. v. PepsiCo., Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). Although the Court is not sitting in diversity jurisdiction in this case and is not addressing the substantive merits of a claim under supplemental jurisdiction, it sees no sound reason why the Court should not also apply New Mexico's choice-of-law rules to determine what law should be used to interpret the invoices. The Court, sitting in New Mexico, will therefore apply New Mexico choice-of-law rules here.

With respect to choice-of-law issues involving contracts, New Mexico generally follows the doctrine of lex loci contractus — the law of the place of contracting controls. See Ferrell v. Allstate Insurance Co., 2008-NMSC-042, ¶ 51, 188 P.3d 1156, 1172. Like most states, however, New Mexico has a common exception to the rule: "New Mexico respects party autonomy; the law to be applied to a particular dispute may be chosen by the parties through a contractual choice-of-law provision." Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 7, 188 P.3d at 1218. "[W]hen application of the law chosen by the parties offends New Mexico public policy," however, a New Mexico court "may decline to enforce the choice-of-law provision and apply New Mexico law instead." Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 7, 188 P.3d at 1218. Here, neither invoice contains a choice-of-law provision. See Billingsley Produce invoice at 11; Mart Produce invoice at 9. There is also no indication of the place of contracting. The Billingsley Produce invoice provides a Bakersville, California address for Billingsley Produce and an Albuquerque, New Mexico address for Tan-O-On Marketing. See Billingsley Produce invoice at 11. The Mart Produce invoice provides a Rupert, Idaho address for Mart Produce and an Albuquerque, New Mexico address for Tan-O-On Marketing. See Mart Produce invoice at 9. Tan-O-On Marketing is a Colorado corporation with its primary place of business in Albuquerque, New Mexico. See Findings of Fact, Conclusions of Law, and Order at 167. Each party, however, relied on New Mexico law in its arguments concerning the invoices. Moreover, the Court applied New Mexico law to the trade-secret claim, the fraudulent-transfer claim, and the unjust-enrichment claim pursuant to the stipulation to apply New Mexico law that Hi-Land Potato, the Andersons, and Tan-O-On Marketing in their pre-trial orders. See Pretrial Order at 19-20; Findings of Fact, Conclusions of Law, and Order at 167. The parties made no claims under California, Colorado, or Idaho state law. Because each invoice has some tie to New Mexico, it is not unreasonable or far-fetched that New Mexico law applies to each invoice. The Court should not set aside the parties' stipulation unless it is plainly incorrect or clearly unlikely that New Mexico law would apply. In accord with the parties' general preference that the Court apply New Mexico law, and in the absence of any argument to the contrary, the Court will apply New Mexico law to interpret the Billingsley Produce and Mart Produce invoices.

Before the Court analyzes whether the Billingsley Produce and Mart Produce invoices' attorney's fee provisions constitute enforceable contractual provisions, the Court first considers whether Hi-Land Potato or Worley are intended beneficiaries of the invoices. Hi-Land Potato is not a party to the Billingsley Produce or Mart Produce invoices. See Billingsly Produce invoice at 11, Mart Produce invoice at 9. Billingsley and Mart Produce — produce sellers — created the invoices for the purpose of selling potatoes to Tan-O-On Marketing, their broker. The invoices do not mention Hi-Land Potato, and there is no evidence that Billingsley Produce, Mart Produce, or Tan-O-On Marketing intended Hi-Land Potato to be a party to the invoices. As a general rule, "one who is not a party to a contract cannot maintain suit upon it." Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶ 4, 811 P.2d at 82. Despite this general rule, a third party may be a beneficiary of a contract, and may, as a beneficiary, have enforceable rights against another party to the contract. See Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶ 4, 811 P.2d at 82. Hi-Land Potato could therefore have an enforceable right if it is found to be a third-party beneficiary. "There are two classes of third-party beneficiaries: intended beneficiaries and incidental beneficiaries." Tarin's Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 3 P.3d at 685-86. The Supreme Court of New Mexico has explained:

Callahan v. New Mexico Federation of Teachers-TVI, 2006-NMSC-010, ¶ 20, 131 P.3d at 58 (internal quotations omitted)(citing Fleet Mortgage Corp. v. Schuster, 1991-NMSC-046, ¶¶ 1-4, 811 P.2d at 82-83). See Great Am. Ins. Co. of New York v. W. States Fire Prot. Co., 730 F.Supp.2d 1308, 1316 (D.N.M.2009).

Tarin's Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 3 P.3d at 686 (internal quotations and citations omitted). "The burden is on the person claiming to be a third-party beneficiary to show that the parties to the contract intended to benefit him." Tarin's, Inc. v. Tinley, 2000-NMCA-048, ¶ 13, 3 P.3d at 686. Hi-Land Potato and Worley therefore have the burden of proving that the parties to the contract intended to benefit Hi-Land Potato. Hi-Land Potato and Worley do not meet this burden. The crux of Hi-Land Potato and Worley's argument is that the attorney's fees provisions were ambiguous as to whom the parties intended the attorney's fee provisions to benefit. In their Reply, Hi-Land Potato and Worley maintain that the term "prevailing party" found in each of the attorney's fees provisions could reasonably be construed to apply to all of the parties in this case. Reply at 16. Hi-Land Potato and Worley therefore insist that the provisions are ambiguous and must be construed against the drafters, Billingsley Produce and Mart Produce. See Reply at 15-16, 18-19. Hi-Land Potato and Worley contend that the Court must therefore construe the attorney's fee provisions to incorporate Hi-Land Potato as a beneficiary because it is a prevailing party. The Court is unpersuaded. The invoices were entered into between a produce seller — Billingsley Produce and Mart Produce — and a broker — Tan-O-On Marketing — who regularly transacted business with one another. Tan-O-On Marketing and Billingsley Produce were the parties to the Billingsley Produce invoice. See Billingsley Produce invoice at 11. Tan-O-On Marketing and Mart Produce were the parties to the Mart Produce invoice. See Mart Produce invoice at 11. The invoices do not mention other parties, and there is no reason to believe that Billingsley Produce, Mart Produce, or Tan-O-On Marketing intended Hi-Land Potato to benefit from the invoices. In the absence of any evidence to the contrary, the Court concludes that Hi-Land Potato is not a third-party beneficiary to the invoices' terms. The Court therefore need not address whether the invoices' attorney's fee provisions are enforceable because even if they were, they would not provide Hi-Land Potato with a right to attorney's fees.

B. HI-LAND POTATO AND WORLEY DO NOT HAVE A STATUTORY RIGHT TO ATTORNEY'S FEES UNDER PACA.

The Court concludes that PACA does not provide Hi-Land Potato and Worley with a statutory right to an award of attorney's fees in this case.19 The statute at issue here, § 499e(c) of PACA, does not include explicit language authorizing the award of attorney's fees. See 7 U.S.C. § 499e(c). Congress explicitly allows, however, for the award of attorney's fees in a different section of PACA — § 499g(c). See 7 U.S.C. § 499g(c). The Supreme Court has stated that an analysis with respect to attorney's fees should begin with the presumption that the American Rule applies. See Fogerty v. Fantasy, Inc., 510 U.S. at 533, 114 S.Ct. 1023 ("Congress legislates against the strong background of the American Rule."); Key Tronic Corp. v. United States, 511 U.S. at 814-815, 114 S.Ct. 1960 ("[A]ny analysis of what Congress intended starts with the presumption that fees are not recoverable."); Ruckelshaus v. Sierra Club, 463 U.S. at 683, 103 S.Ct. 3274 (explaining that, when construing an attorney's fee provision, "[o]ur basic point of reference is the American Rule"). The Supreme Court has further stated that an award of fees under the statutory exception to the American Rule requires explicit congressional authority indicating that Congress intended to set aside the American Rule. See Runyon v. McCrary, 427 U.S. at 185-86, 96 S.Ct. 2586; Key Tronic Corp. v. United States, 511 U.S. at 815, 114 S.Ct. 1960. The Supreme Court treats congressional silence "as an indication that the legislature did not intend to authorize fee shifting." Unbelievable, Inc. v. N.L.R.B., 118 F.3d at 802. Congress was silent with respect to attorney's fees under § 499e(c), but under § 499g(c), Congress explicitly allows for attorney's fees if an appellant successfully appeals from a reparation order for a violation of Section 499b. See 7 U.S.C. § 499g(c). Section 499g(c) indicates that Congress could have provided for the award of attorney's fees under Section 499e if it intended to do so. The Court can only reasonably conclude, therefore, that Congress' silence with respect to attorney's fees under § 499e(c) was intentional, and that Congress did not intend to award attorney's fees in cases brought pursuant to § 499e(c).20 Accordingly, the Court concludes that Hi-Land Potato and Worley do not have a statutory right to attorney's fees under PACA.

C. UNDER GENERAL TRUST PRINCIPLES, THE COURT HAS AUTHORITY TO AWARD ATTORNEY'S FEES BUT DECLINES TO DO SO.

1. General Principles of Trust Law Provide the Court with the Authority to Award Attorney's Fees in Cases Involving PACA Trusts.

The Court has the authority under general principles of trust law to award attorney's fees in cases involving PACA trusts. The Courts of Appeals, in construing PACA, have uniformly held that "[t]he interpretation of PACA trust interests is guided by general trust principles to the extent there is no conflict with the statute." In re Arctic Exp. Inc., 636 F.3d at 798 (quoting Consumers Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d at 1381). See R Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d at 242 (noting that the Second Circuit has "previously noted that PACA trusts are `governed by general principles of trust law'")(quoting Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d at 615); Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d at 167 ("General trust principles of trust law apply to trusts created under PACA....")(quoting Nickey Gregory Co., LLC v. AgriCap, LLC, 597 F.3d at 595); Reaves Brokerage Co., Inc. v. Sunbelt Fruit & Vegetable Co., Inc., 336 F.3d at 413 ("General principles of trust law govern PACA trusts."); Boulder Fruit Exp. & Heger Organic Farm Sales v. Transp. Factoring, Inc., 251 F.3d at 1271 ("We apply general trust principles to questions involving the PACA trust, unless those principles directly conflict with PACA."); Gargiulo v. G.M. Sales, Inc., 131 F.3d at 999 ("General principles of trust law govern the PACA trust...."). That general trust principles guide the interpretation of PACA trust interests is consistent with § 499e(2)'s plain language, which expressly uses the word trust, indicating Congress' intent that PACA trusts be administered under general trust principles like any other trusts. See In re Arctic Exp. Inc., 636 F.3d at 794 (6th Cir.2011)(noting that "common law principles apply to the formation of [Congress' numerous] statutory trusts"). Courts have authority to award attorney's fees under general principles of trust law. See G. Bogert & G. Bogert, The Law of Trusts and Trustees § 871 (Rev. 2d ed. 1998)("In suits to enforce the rights of trust beneficiaries the court exercises discretion as to the allowance of attorney fees and costs, either from the trust estate or from other sources."); Dardovitch v. Haltzman, 190 F.3d 125, 145 (3d Cir.1999) ("One of the more common exceptions to the American Rule is that attorney's fees are available at the discretion of the court in cases involving trusts.")(citing Estate of Tose, 482 Pa. 212, 393 A.2d 629 (Pa.1978). The Court therefore finds that it has authority to award attorney's fees in cases involving PACA trusts, such as this one.

2. The Court Has the Authority to Award Attorney's Fees Against Skyline Potato and the Folson Farm Group.

The Court finds that it has authority to award attorney's fees against Skyline Potato, and the Folson Farm Group under general principles of trust law. Each of the parties' claims arose from issues concerning a trust created under PACA wherein Tan-O-On Marketing was the trustee and Hi-Land Potato, Skyline Potato, and the Folson Farm Group were the beneficiaries. Skyline Potato and the Folson Farm Group argued that Hi-Land Potato was not a beneficiary of the PACA trust, but was instead a third party to whom PACA trust assets were transferred in breach of the PACA trust, and should therefore be required to disgorge the trust assets. See Pretrial Order at 4. Skyline Potato and the Folson Farm Group's claims clearly sounded in trust law and required the extensive interpretation of PACA, which is guided by general trust law principles. See Findings of Fact, Conclusions of Law and Order, at 141-166. Tan-O-On Marketing and the Andersons, on the other hand, asserted a fraudulent transfer claim, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 39-62, at 8-12, an unjust enrichment claim, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 109-113, at 24-25, and a theft of trade secrets and proprietary information claim, see Tan-O-On Marketing's Second Amended Complaint ¶¶ 62-80, at 12-17, against Hi-Land Potato and Worley. See Amended Third Party Complaint for Fraudulent Conveyance and Theft of Trade Secrets and Unjust Enrichment, filed July 26, 2012 (Doc. 240)("Tan-O-On Marketing's Second Amended Complaint). Unlike Skyline Potato and the Folson Farm Group's claims, Tan-O-On Marketing and the Anderson's claims were not rooted in trust law. See Findings of Fact, Conclusions of Law and Order, at 141-166. The Court therefore finds that it has the authority to award attorney's fees against Skyline Potato and the Folson Farm Group under general trust law principles.

3. Although the Court Has the Authority to Award Attorney's Fees to Hi-Land Potato and Worley, It Declines to Do So.

Having found that it has the authority to award attorney's fees to Hi-Land Potato and to Worley, the Court must determine whether it should exercise its authority to award attorney's fees under the circumstances of this case. The Court concludes that it would upset the general principles of trust law and underlying PACA policies to award Hi-Land Potato and Worley attorney's fees and costs against Skyline Potato and the Folson Farm Group. Accordingly, the Court declines to award attorney's fees in this case.

Although general principles of trust law apply to PACA trusts, "[they] are not applicable if they conflict with the language of the statutes, the clear intent of Congress enacting the statute, or the accompanying regulations." C.H. Robinson Co. v. Trust Co. Bank, N.A., 239 F.3d at 487. The UTC encompasses general principles of trust law. See Unif. Trust Code (2000) Refs & Annos. Section 1004 of the UTC provides the Court with broad discretion to award attorney's fees in litigation involving the administration of a trust as justice and equity may require. See Unif. Trust Code § 1004 (Unif. Law Comm'n 2000)("In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy."). Skyline Potato, Tan-O-On Marketing, the Andersons, and the Folson Farm Group argue that Hi-Land Potato and Worley's reliance on Section 1004 of the NMUTC is misplaced, because federal law, not state law is applicable here. In response, Hi-Land Potato and Worley assert:

Reply at 4. The Court agrees. Section 1004 of the UTC informs the Court's decision whether general principles of trust law support the award of attorney's fees here. The Court looks to Section 1004 of the NMUTC and other state statutes equivalent to Section 1004 of the UTC to understand how Section 1004 of the UTC has been interpreted. In the sole New Mexico case addressing § 1004 of the NMUTC, the Court of Appeals of New Mexico stated:

Khalsa v. Puri, 2015-NMCA-027, ¶ 72, 344 P.3d at 1053. In Atwood v. Atwood, 25 P.3d at 947, the Court of Civil Appeals of Oklahoma held that statutes equivalent to Section 1004 of the Uniform Trust Code "provide a statutory exception to the American Rule ... when justice and equity may require that fees, costs, and expenses be awarded." The Atwood v. Atwood court further explained that, when determining whether justice and equity require the award of attorney's fees, courts have considered the following non-exhaustive factors:

Atwood v. Atwood, 25 P.3d at 947; In re Trust No. T-1 of Trimble, 826 N.W.2d at 491; Garwood v. Garwood, 233 P.3d at 986. The Court will consider each of the five factors that Atwood v. Atwood identifies, but because the Court has broad discretion with respect to an award of attorney's fees, it finds that this list is not exhaustive and does not control the Court's final decision.

a. The Parties' Claims, Contentions, and Defenses Were Reasonable.

This lawsuit arose from Tan-O-On Marketing's failure to pay Skyline Potato and the Folson Farm Group for sales of potatoes they made to Tan-O-On Marketing between October and December, 2009. See Deposition of Gerald Anderson at 57:11-25 (taken May7-8, 2012), filed August 8, 2012 (Doc. 252-1)("Anderson Depo."). During that time period, Tan-O-On Marketing paid Hi-Land Potato for potatoes that Hi-Land Potato shipped to customers between October and December, 2009. See Findings of Fact, Conclusions of Law, and Order at 53. Skyline Potato and the Folson Farm Group brought this lawsuit in an attempt to recover money due to them under PACA. Skyline Potato and the Folson Farm Group pursued claims against Hi-Land Potato, because they believed that Hi-Land Potato, whom Tan-O-On Marketing had paid in full, was being paid in preference over Skyline Potato and the Folson Group. Response to Hi-Land Potato's MSJ at 15. Despite the Court finding otherwise, the Court notes that Skyline Potato and the Folson Farm Group had reason to believe that Hi-Land Potato was receiving payments in preference from Tan-O-On Marketing. See Findings of Fact, Conclusions of Law, and Order at 157-161. Congress explained that "the purpose of the [PACA] trust is to increase the legal protection for unpaid sellers and suppliers of perishable agricultural commodities until full payment of sums due have been received by them." H.C. Schmieding Produce v. Alfa Quality Produce, 597 F.Supp.2d at 315-16 (quoting R Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d at 241)(internal alterations omitted). It would therefore be inconsistent for the Court to enforce an award of attorney's fees against Skyline Potato and the Folson Farm Group when they were only seeking the legal protections established by Congress in PACA. Moreover, in its ruling on Hi-Land Potato and Worley's motion for summary judgment against Skyline Potato and the Folson Farm Group and Skyline Potato and the Folson Farm Group's motion for summary judgment against Hi-Land Potato and Worley, the Court created the test for determining whether Hi-Land Potato breached its duty to the other beneficiaries of Tan-O-On Marketing's PACA trust, and the Court found a genuine issue of material fact that required a trial. Thus, there was sufficient evidence of preferred payment, under the applicable law, to require a trial. The Court also sees no reason why it should find that the claims brought by Tan-O-On Marketing and the Andersons were unreasonable. Tan-O-On Marketing and the Andersons acted on the good-faith belief that Hi-Land Potato engaged in theft of trade secrets, fraudulent conveyance, and unjust enrichment.

b. The Parties did not Unnecessarily Prolong Litigation.

The litigation between Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, the Andersons, Hi-Land Potato and Worley was indeed long, but not unnecessarily so. The issues presented to the Court were complex and novel. Moreover, Hi-Land Potato and Worley stated in their Reply that

Reply at 10.

c. The Court Will Not Rely on the Parties' Relative Ability To Bear The Financial Burden.

The Court does not have sufficient evidence regarding the Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, or the Andersons' ability to bear the financial burden of paying Hi-Land Potato and Worley's attorney's fees. Accordingly, the Court will not rely on this factor when determining whether to award attorney's fees. The Court agrees with Hi-Land Potato and Worley that the "Plaintiffs ... put forth no evidence of their own net worth or inability to bear the expense. Without such evidence, this factor is irrelevant and should not be considered." Reply at 10.

d. The Results Obtained by the Litigation and Prevailing Party Concepts Do Not Support the Award of Attorney's Fees.

Hi-Land Potato and Worley are prevailing parties. See Final Judgment, filed January 31, 2014 (Doc. 373); Findings of Fact, Conclusions of Law, and Order, filed January 31, 2014 (Doc. 372). Hi-Land Potato and Worley's status as prevailing parties does not, alone, entitle them to the award of attorney's fees. Generally, courts award fees to a prevailing party if the prevailing party's action resulted in a benefit to the trust. In re Delta Produce, LP, No. 5:12-CV-1127-DAE, 2014 WL 4443414, at *11 (W.D.Tex. Sept. 9, 2014)(Ezra, J.)("[Courts] generally require the claimant to demonstrate that its efforts and resultant expenses were directly responsible for the availability of the funds from the PACA trust.")(quotation marks omitted)(citing In Re Milton Poulos, 947 F.2d at 1353). See In re Southland + Keystone, 132 B.R. 632, 643 (9th Cir. BAP 1991); In re United Fruit & Produce Co., 119 B.R. 10, 13 (Bankr.D.Conn.1990)(Krechevsky, J.). This case is distinguishable from cases where courts have awarded attorney's fees to prevailing parties in two important ways: First, Hi-Land Potato and Worley are not asking the Court to award attorney's fees out of a trust; they are asking for attorney's fees against Skyline Potato and the Folson Farm Group directly. Hi-Land Potato and Worley are asking for fee shifting, not payment out of a fund that they created. Second, Hi-Land Potato and Worley's success in defending against Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons' claims did not result in a benefit to the trust. Although this case is distinguishable from those cases awarding attorney's fees to the prevailing party out of the trust, the Court finds that the policy considerations are applicable here. In those cases, the courts awarded attorney's fees out of the trust, because the prevailing party had succeeded in bringing a benefit to the trust. This award is consistent with general principles of trust law and PACA statutes. See H.C. Schmieding Produce v. Alfa Quality Produce, 597 F.Supp.2d at 315-16 ("[T]he purpose of the [PACA] trust is to increase the legal protection for unpaid sellers and suppliers of perishable agricultural commodities until full payment of sums due have been received by them.")(quoting R Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d at 241)(internal alterations omitted).

e. The Parties Did Not Act in Bad Faith, Vexatiously, Wantonly or for Oppressive Reasons in the Bringing or Conduct of the Litigation.

Consistent with the Court's analysis with respect to the reasonableness and length of this litigation, the Court concludes that Skyline Potato, the Folson Farm Group, Tan-O-On Marketing, and the Andersons did not act in bad faith, vexatiously, wantonly or for oppressive reasons in the bringing or conduct of the litigation. The court sees no reason to conclude that Tan-O-On Marketing and the Andersons acted in bad faith, vexatiously, wantonly or for oppressive reasons in the brining or conduct of the litigation. Likewise, Skyline Potato and the Folson Farm Group had reason to believe that Hi-Land Potato was being paid by Tan-O-On in preference over Skyline Potato and the Folson Farm Group. Their conduct throughout the litigation was not in bad faith, and there has been no evidence presented to the contrary.

f. Policy Considerations under General Principles of Trust Law Do Not Support the Award of Attorney's Fees.

General principles of trust law allow for the award of attorney's fees for the purpose of making the trust and its beneficiaries whole, "usually by restoring the trust estate and trust distributions to what they would have been if the portion of the trust affected by the breach had been properly administered...." Restatement (Third) of Trusts § 100 (2012) General Comment a (internal citations omitted). It is clear from this comment that the interests of the trust and its beneficiaries are the focus of the award of attorney's fees in cases involving trusts. Although this comment concerns liability of trustees for breach of trust, which is not the issue presently being addressed, the Court finds the underlying principle informative. The Court also notes that this principle is consistent with the congressional intent behind trusts created under PACA. Congress intended for PACA trusts to protect unpaid sellers and suppliers of perishable agricultural commodities interests by providing them with greater legal protections. See H.C. Schmieding Produce v. Alfa Quality Produce, 597 F.Supp.2d at 315-16 ("Congress explained that `the purpose of the [PACA] trust is to increase the legal protection for unpaid sellers and suppliers of perishable agricultural commodities until full payment of sums due have been received by them.'")(quoting R Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d at 241)(internal alterations omitted). If PACA trusts are created for the purpose of protecting unpaid sellers and suppliers — PACA trusts beneficiaries — it follows that courts should consider whether the award of attorney's fees will serve to further protect those beneficiaries, and whether the award of attorney's fees is in the trust and its beneficiaries' best interests.

Under the facts and circumstances of this case, the Court does not find that the award of attorney's fees would be in the trust and its beneficiaries' best interests. Hi-Land Potato, Skyline Potato, and the Folson Farm Group are all a shared PACA trust's beneficiaries. Hi-Land Potato is therefore asking the Court to award attorney's fees against its co-beneficiaries, Skyline Potato and the Folson Farm Group. The Court does not see how the award of attorney's fees against Skyline Potato and the Folson Farm Group will benefit the trust, or make the trust and all of its beneficiaries whole again. It prefers one set of beneficiaries over another who had legitimate, good-faith disagreements about how the PACA trust funds were being paid and distributed. General principles of trust law provide a clear message to the Court that it should consider the interests of the trust and all of its beneficiaries. Furthermore, the Court does not see how the award of attorney's fees against Tan-O-On Marketing and the Andersons will make the parties whole again. The Court finds no sound reason that awarding attorney's fees against any of the parties in this case will be in the best interest of the trust and all of its beneficiaries. Thus, the Court concludes that general principles of trust law do not support the award of attorney's fees in this case.

IT IS ORDERED that: (i) Hi-Land Potato Company, Inc.'s and Carl Worley's Motion for Award of Attorney's Fees and Costs, filed February 28, 2014 (Doc. 374), is denied; and (ii) Motion to File Response Out of Time, filed April 8, 2014 (Doc. 382), is granted.