Lafarge Conseils et Etudes v. Kaiser Cement & Gypsum Corp.
Opinion of the Court
Kaiser Cement Corporation appeals from the district court’s denial of its motions to vacate the arbitration award and to set aside a judgment confirming that award. Foley’s claims against Kaiser for breach of contract were arbitrated under a contract provision. The panel awarded Foley $3,786,194.
We affirm.
FACTS
In 1979, Kaiser invited bids from electrical contractors in preparation for remodeling its cement plant at Permanente, California.
Erwin stated that shortly after Kaiser invited bidding on the project, Foley received a phone call from Fred Byrum of Fischbach in which Byrum said he could “control” everyone on that job. Erwin stated that he understood Byrum’s statement to mean that “the other bidders would not submit their bids without first checking with Fred Byrum so that he could control the prices submitted by them.” Erwin further stated that Byrum asked Lench, another Foley employee, what Foley would do and Lench replied that Foley intended to bid the job competitively. Lench wanted to keep his options, to submit either a competitive or a fixed bid, and “extract a chip” from Fred Byrum for some future job in return for “laying off” or submitting a “complementary” bid.
Foley bid the project at $5,216,000. According to Erwin, Lench received a bid amount from Byrum of Fischbach on May 29, and submitted it along with the fabricated breakdown. On June 6, 1979, Erwin and Lench attended a pre-award meeting with Kaiser representatives. At the meeting it was apparent that Kaiser wanted to give the contract to Foley if Foley would reduce its costs. According to Erwin, he and Lench decided to underbid Fischbach. The next day Foley submitted a bid of $4,794,000. Kaiser did not respond to that bid. It instead issued revised blueprints and invited revised bids. To prevent Fisch-bach’s learning of the underbidding, Lench and Erwin prepared two documents. First, they composed a revised proposal letter to Kaiser that contained a bid of $5,221,000, $5,000 over the initial bid, that could be read to Byrum. Second, they prepared an attachment to the letter, on plain white paper and unsigned, listing various deductions. By exercising the options in the attached letter, Kaiser could reduce the bid by $450,000. Kaiser chose to exercise options worth $420,000 and reduced the total cost to $4,801,000. Kaiser awarded the contract to Foley.
Erwin stated that he participated in the destruction of documents requested by subpoena from the federal grand jury sitting in Washington, D.C., which was investigating illegal price-fixing in the electrical construction industry. Erwin testified that Lench told him to destroy whatever documents would incriminate Foley. He destroyed telephone statements, supplier invoices, and estimates on all projects bid by the Martinez office. Erwin created a fictitious document retention policy which would explain the nonexistence of the destroyed documents.
Erwin also created false documents. Erwin said he was asked to provide Foley’s arbitration counsel, Mr. Bryan, with a copy of the original endsheet for the Kaiser bid.
Kaiser contracted with Foley to perform electrical construction services over a ten-month period for a contract price of about $4.8 million.
On November 23, 1981, District Judge William W. Schwarzer, ordered serial arbitration, under the provisions of the United States Arbitration Act, 9 U.S.C. §§ 1-14 (1982).
The arbitrators requested an independent audit of Foley’s actual costs “in order to verify the actual cost to Foley to perform the work on this project.”
I Judgment
Kaiser appeals the district court’s denial of its Rule 60(b) motion to set aside the judgment confirming the arbitration award. An order denying relief under Rule 60(b) is appealable, but the appeal brings up the correctness of the order only. It does not permit appellant to attack the arbitration award for error that could have been complained of on direct appeal.
A motion brought under 60(b)(6) must be based on grounds other than those listed in the preceding clauses. Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981). Clause 60(b)(6) is residual and “must be read as being exclusive of the preceding clauses.” In addition, the clause is reserved for “extraordinary circumstances.” Id.; Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 248 (1972). Because Kaiser failed to allege “extraordinary circumstances” and relied exclusively upon its fraud and newly discovered evidence arguments, the district court held that Rule 60(b)(6) was not applicable.
Under Rule 60(b)(3), the moving party must establish by clear and convincing evidence that a judgment was obtained by fraud, misrepresentation, or misconduct, and that the conduct complained of prevented the moving party from fully and fairly presenting the case. Bunch v. United States, 680 F.2d 1271, 1283 (9th Cir. 1982); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978). Kaiser failed to identify any fraud, misrepresentation or misconduct in the court proceedings. Fraud alleged in the arbitration does not render the judgment fraudulently obtained.
Kaiser also argues that the court made five errors which prevented it from fully and fairly presenting its case. The five alleged errors are (1) its ruling that Foley’s alleged fraud and bid-rigging were not material, (2) its conclusion that Kaiser did not use due diligence in discovering evidence of fraud, (3) its refusal to allow Kaiser to depose Lench, (4) its consideration of “incompetent testimony of Foley’s declarants”, and (5) its failure to hold an evidentiary hearing. These errors do not constitute “extraordinary circumstances” under 60(b)(6) and do not otherwise justify setting aside the judgment confirming the award.
II Award
The United States Arbitration Act, 9 U.S.C. § 10(a) (1982), permits the vacation of an arbitration award, “ [wjhere the award was procured by corruption, fraud, or undue means.” Section 12 of the Act provides that “ [njotice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” The arbitrators issued their decision on May 31, 1983, and Kaiser filed its original motion to vacate on June 24, 1983. The motion was denied on August 5, 1983 when the district court confirmed the arbitration award. Kaiser did not seek an appeal of the court’s decision. Kaiser now attempts to revive the motion to vacate by way of a Rule 60(b) motion with a claim of newly discovered evidence.
The federal Arbitration Act provides the exclusive grounds for challenging an arbitration award within its purview. Corey v. New York Stock Exchange, 691 F.2d 1205, 1212 (6th Cir. 1982). “Once an arbitrator has rendered a decision the award is binding on the parties unless they challenge the underlying contract to arbitrate pursuant to section 2 or avail themselves of the review provisions of sections 10 and 11.” Id. Otherwise, “ [t]he three month notice requirement of section 12 for appeal of an award on section 10 or 11 grounds [would be] meaningless if a party to the arbitra
Kaiser’s current motion seeking to vacate the arbitration award was filed August 3, 1984, approximately one year after the award was made. Thus, direct attack of the award pursuant to section 10 of the Arbitration Act is foreclosed. In addition, Kaiser may not now collaterally attack the award under the guise of a motion to set aside the judgment confirming the award.
Even if Kaiser’s motion was timely, Kaiser fails to allege fraud which justifies vacation of the award. The Arbitration Act allows vacation of an award “where the award was procurred by corruption, fraud, or undue means.” 9 U.S.C. § 10. Kaiser must show that the fraud was (1) not discoverable upon the exercise of due diligence prior to the arbitration, (2) materially related to an issue in the arbitration, and (3) established by clear and convincing evidence. Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir.), cert. denied, 459 U.S. 990, 103 S.Ct. 346, 74 L.Ed.2d 386 (1982).
Kaiser stated that during the arbitration it suspected that Erwin had falsified documents.
Ill Entitlement To Attorney Fees
The district court awarded Foley attorney fees incurred in opposing Kaiser’s motion. The Kaiser-Foley contract provides that Kaiser is entitled to attorney fees in any action to enforce the contract.
This court held that stay proceedings are not proceedings “on a contract” even though the Righettis sought to foreclose a deed of trust because substantive issues regarding the underlying contract are not involved in bankruptcy stay litigation. Id. at 740; see In re Coast Trading Co., 744 F.2d 686, 693 (9th Cir. 1984) (“the question of the applicability of the bankruptcy laws to particular contracts is not a question of the enforceability of the contract but rather involves a unique, separate area of federal law” ).
In this case, Kaiser moved to compel arbitration pursuant to its contract with Foley. The arbitration concerned Foley’s entitlement to payment for services rendered pursuant to the contract. That arbitration resulted in an award. Kaiser was contractually bound by the award unless grounds existed for vacation of the award under 9 U.S.C. § 10. Kaiser did challenge the award as procured by fraud. Kaiser’s motion to vacate the award and set aside the judgment confirming the award arose directly out of the contract, as did Foley’s opposition to Kaiser’s motion. The Kaiser-Foley contract provides that Kaiser is entitled to attorney fees in actions to enforce the contract. We conclude that Kaiser’s motion is an action based on the contract and therefore the contractual provision for attorney fees applies. Unlike Johnson, the underlying contract between the parties is not collateral to the proceedings but plays an integral part in defining the rights of the parties by setting forth arbitration as the agreed means of dispute resolution.
Kaiser argues that its motion was not “on the contract” because Kaiser’s defense was that the arbitration award was pro
Looking at the Kaiser-Foley contract, it provides that it is to be interpreted in accordance with California law. Consequently, we look to California law, specifically Cal.Civ.Code, section 1717, in interpreting the attorney fee provision. Because section 1717 makes the attorney fee provision applicable to Foley, we find that the district court was correct in awarding Foley attorney fees.
IV Attorney Fee Documentation
A district court’s award of attorney fees is reviewed for abuse of discretion. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).
Foley moved for attorney fees in the amount of $259,820.11, based upon Article 28 of the construction contract and section 1717(a) of the California Civil Code. In support of its motion for fees, Foley submitted the affidavits of Sims and Bryan and the Declaration of Dillon. These documents complied with Local Rule 270-2.
In its order of February 14th, the district court awarded Foley $207,700 in attorney fees and costs.
Kaiser argues that Foley actually received everything it asked for and that somehow implies an inadequate inquiry by the district court. Foley originally claimed $259,820.11 but $35,061.16 was for a bonus. The bonus claim was not supported in the application, and was not addressed by the court in its order awarding attorney fees. Apart from the bonus claim, Foley claimed $207,952.66. Foley received $207,700.
The court’s award of attorney fees was supported by affidavits and exhibits that included contemporaneous time records maintained by the law firms involved. The exhibits and affidavits disclosed the hours billed, the nature of the professional services rendered, and the customary hourly rate of each attorney. Each attorney specified his professional credentials. Each firm submitted a description of the services performed, by whom they were performed, and that individual’s hourly rate at the time of performance. In some instances the time devotéd to each service was reflected in a contemporaneous record. Account statements reflected both attorney’s fees and costs, such as travel expenses.
The district court meticulously considered the relevant factors. The court found that a large amount of money, $3.8 million, was at stake. The work was complicated and time consuming. Kaiser raised numerous legal and factual issues in its motion to vacate. Foley’s counsel was required to work with a voluminous record of the arbitration hearing and to do considerable legal research. Foley’s counsel worked under time pressure. Counsel for Foley were of the “highest quality,” experienced and competent.
The court examined the affidavits and exhibits submitted and held that the time charged was reasonably expended, that there was no duplication of effort and that Foley’s retention of three firms was reasonable. Each firm served Foley in a different respect. Jones, Day, Reavis & Po-gue served as lead counsel because it had represented Foley in related litigation and was familiar with the issues. Mclnerney & Dillon had represented Foley in connection with the arbitration and served as local counsel. Taylor & Bryan brought to Foley its familiarity with the arbitration. The court held that the hourly rates charged were reasonable in light of the experience and standing of the lawyers involved and the nature and circumstances of the work.
The court’s analysis was thorough and thoughtful. It reflected consideration of the relevant factors. The court did not abuse its discretion in granting Foley $207,-700 in attorney fees.
Under Cal.Civ.Code, section 1717, Foley is entitled to attorney fees incurred in defending this appeal. If Foley makes application to this court within 30 days of this order, it will be awarded its fees. The award is subject to reconsideration if opposition to the application is filed within ten days of application.
The decision of the district court is AFFIRMED.
. The panel awarded Foley $330,998 for change orders and $3,455,206 for delay and disruption.
. In a separate action, Kaiser alleges that the Howard P. Foley Company (Foley), Fischbach & Moore, Inc. (Fischbach), and Roy M. Butcher Electric (Butcher) conspired to rig the bids on electrical work at the Kaiser plant. This antitrust claim is the subject of Kaiser Cement v. Fischbach & Moore, Inc., No. 85-1846, in which summary judgment was granted for defendants.
. At the time of the bidding, Erwin was employed by Foley. Erwin left his position with Foley, and was subsequently called to testify before a grand jury investigating price-fixing in the electrical construction industry.
. A "chip” is the favorable consideration that one would receive from a competing bidder in return for an agreement not to submit a bid ("laying off’) or submitting a bid price which is, by agreement with the competing bidder, higher than the bid submitted by the competing bidder (a "complementary” bid).
. Endsheets are bid summary sheets that accompany the bid files.
. Erwin states that this document was intended to mislead both Mr. Bryan and the arbitrators in determining the fee Foley was entitled to receive. This endsheet became Exhibit 7.
Lench’s testimony in the arbitration contradicts Erwin. Lench maintained that Endsheet II (Recount of Final Prices), was created the day after he and Erwin met with Kaiser and agreed on the contract, June 7, 1979.
. The prime contract was to start in July of 1979 and be completed on May 31, 1980.
. Foley requested compensation for damages due to Kaiser's breach in the following categories:
1. Labor escalation
2. Labor disruption
3. Uncompensated pending change orders
4. Additional and extended overhead costs
5. Butcher Electric’s subcontractor claim
6. Foley's claim for retention and approved change orders not paid
7. Financing costs
8. Attorneys’ fees and claim preparation costs
. Foley petitioned the state court to compel arbitration on June 22, 1981. The procedural history from June 22 until November 23, 1981, when Foley appeared in federal court, is unclear.
. "The audit will be certified and will be limited to establishing the actual costs to Foley as they are recorded in the Foley project ledgers and files. The Arbitrators will adjust those costs for Workers’ Compensation and self-owned equipment.”
. The district court explained that: "Kaiser seeks to apply clauses (2) and (3) to the arbitration proceeding, but fails to address the effect of the intervening judgment confirming the award.” (Opinion at 5). Kaiser must state grounds for setting aside the court’s judgment before reaching the arbitration award.
. Patrick Duffy, Kaiser’s arbitration counsel stated that " [d]uring the arbitration I suspected that [Exhibits 2 and 7] may have been tampered with and I voiced this concern to the arbitrators." In his opening statement, Kaiser’s counsel told the arbitrators that the bid documents might be false and he would attempt to prove that they were. The court found that evidence was not newly discovered. "Kaiser filed its original motion to vacate the arbitration award fully aware of the allegedly fraudulent nature of these exhibits and the testimony given in support of them ...’’.
. Kaiser argues that Erwin’s sudden willingness to testify, a year after the arbitration, constitutes new evidence which merits vacation of the award. Erwin was granted immunity when subpoenaed by a federal grand jury investigating price-fixing in the electrical construction industry. Pursuant to the grant of immunity, Erwin testified before the grand jury for four days. He testified to the agreement to fix prices on the electrical work in the Kaiser project, the withholding and destruction of documents in response to a subpoena from another federal grand jury, and the creation of false documents which were ultimately used in the Kaiser arbitration.
. Article 28 of the Permanente project contract between Kaiser and Foley provided that, in certain circumstances, Kaiser could recover its attorney fees if forced to litigate against Foley in connection with a dispute arising out of the contract.
. California Civil Code § 1717 provides:
In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce the provisions of the contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the prevailing party, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements.
Section 1717 is calculated to provide mutuality of remedy and eliminate one-sided attorney fees clauses which would otherwise be used to force settlements of unmeritorious claims. Berge v. International Harvester Co., 142 Cal.App.3d 152, 164, 190 Cal.Rptr. 815, 824 (1983). "This protection is available to the consumer even if he succeeds in defending himself on the theory that there was no enforceable contract to begin
. This court has given the requirement that an action be "on the contract” a liberal scope. While a tort action for fraud arising out of a contract is not an action on a contract, intentional misrepresentation may render a contract void or provide a basis for rescission or reformation. An action to avoid, reform or rescind a contract due to intentional misrepresentations is an action on a contract. Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc., 121 Cal.App.3d 447, 461, 176 Cal.Rptr. 546, 554 (1981).
Here, since the language of the deed of trust did not limit the situation in which attorney’s fees would be recoverable to any particular form of action involving the contract, the suit resulting in a judgment invalidating the purported agreement between the parties for lack of consideration and alternatively for intentional misrepresentation was an action “on the contract" which permitted an award of attorney fees under section 1717.
Star Pacific Investments, 176 Cal.Rptr. at 555. Under California law, "where claims and counterclaims arise in connection with a contract containing an attorneys’ fees provision, the party who obtains a favorable judgment is deemed to be the prevailing party even though he did not successfully obtain all the relief which he sought in the action.” Matter of Sparkman, 703 F.2d 1097, 1100 (9th Cir. 1983).
. Rule 270-2 provides:
Unless otherwise ordered, the application [for attorneys’ fees] shall be supported by declarations or affidavits containing the following information:
(a) A statement that counsel have met and conferred or that the applying attorney has made a good faith effort to arrange such a conference;
(b) A statement of the services rendered by each person for whose services fees are claimed together with a summary of the time spent by each person, and a statement describing the manner in which time records were maintained. Depending on the circumstances, the judge may require submission of the abstract of the contemporary time records or the production of these records for inspection, including in camera inspection, as the judge deems appropriate;
(c) A brief description of relevant qualifications and experience and a statement of the customary hourly charges of each such person or of comparable prevailing hourly rates or other indication of value of the services.
. Breakdown of fees and costs awarded:
Fees Costs
Jones, Day (Sims), Lead counsel $119,581 $21,399
Mclnerney & Dillon (Dillon), Lead counsel 44,280 10,967
Taylor & Bryan (Bryan), Arbitration counsel 8,778 2,695
Totals $172,639 $35,061
Fees Total $172,639
Costs Total $ 35,061
Grand Total $207,700
Reference
- Full Case Name
- LAFARGE CONSEILS ET ETUDES, S.A. v. KAISER CEMENT & GYPSUM CORP., Defendant-Counterclaimant/Appellant v. The HOWARD P. FOLEY COMPANY, Counterdefendant/Appellee
- Cited By
- 9 cases
- Status
- Published