International Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., AFL-CIO

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 752 F.2d 1401
• Docket Number: AFL-CIO,No. 84-5634,84-5634
• Parties: 118 L.R.R.M. (BNA) 2890, 40 Fed.R.Serv.2d 1421, 102 Lab.Cas. P 11,354 INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTSMAN LOCAL UNION NO. 20,; Brick And Tile Health And Welfare Trust; Brick And Tile Pension Trust; Brick And Tile Vacation Trust, Plaintiffs-Appellants, v. MARTIN JASKA, INC., et al., Defendant-Appellee.
• Decision Date: 30 January 1985

Page 1401

752 F.2d 1401 118 L.R.R.M. (BNA) 2890, 40 Fed.R.Serv.2d 1421,
102 Lab.Cas. P 11,354 INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTSMAN LOCAL
UNION NO. 20, AFL-CIO; Brick And Tile Health And Welfare
Trust; Brick And Tile Pension Trust; Brick And Tile
Vacation Trust, Plaintiffs-Appellants,
v.
MARTIN JASKA, INC., et al., Defendant-Appellee. No. 84-5634. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 3, 1984.
Decided Jan. 30, 1985.

Page 1403

Ray Van Der Nat, Van Der Nat, McNeil & Haywood, Los Angeles, Cal., for plaintiffs-appellants.

John H. Stephens, Cox, Castle & Nicholson, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and BOOCHEVER, Circuit Judges, and MacBRIDE, ^* District Judge.

MacBRIDE, District Judge:

The International Union of Bricklayers and affiliated benefit trust funds ("Bricklayers") sued appellee Martin Jaska, Inc. ("Jaska"), a construction general contractor, for damages caused by Jaska's breach of collective bargaining agreements it had with two other unions. Bricklayers theorized that it was the intended third-party beneficiary of those agreements.

Upon cross-motions for summary judgment, the trial court entered judgment for defendant Jaska. We affirm and impose sanctions on appellants for bringing this frivolous appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The appellee, Martin Jaska, Inc., is a medium-sized general contractor in construction. Appellants are the International Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO, Brick and Tile Health and Welfare Trust, Brick and Tile Pension Trust, and Brick and Tile Vacation Trust (collectively "Bricklayers"). The Bricklayers Union represents all unionized bricklaying and tile-setting workers in the geographical area in which Jaska operated. The Trust Funds benefit from contributions made by employers who engage workers represented by the Bricklayers Union.

Jaska was bound to follow the terms of two Master Labor Agreements ("MLA's") negotiated with the Carpenters' Union ("Carpenters") and the Laborers' Union ("Laborers"). Each agreement had substantially identical provisions which forbade Jaska from subcontracting any jobsite work to non-union firms. ¹

Jaska allegedly breached those provisions twice on one construction project, by subcontracting out bricklaying and tile-setting work to non-union firms. Appellants thereupon brought suit for damages arising out of those breaches. Bricklayers' theory of recovery was that it was the intended third-party beneficiary of Jaska's agreements with the Carpenters and Laborers not to subcontract with non-union concerns. Jaska denied that Bricklayers was an intended beneficiary.

The dispute turned on a provision in the relevant MLA's which set out the stated purposes of the MLA's ban on using non-union subcontractors. ² Bricklayers argued

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below that this provision suggested that the prohibition was expressly intended to benefit all unionized construction tradesmen, not just those represented by unions privy to the MLA. Jaska, of course, took a diametrically opposed view of that provision.

After discovery had been completed, and a trial date had been set, the parties joined in lodging a Proposed Pre-Trial Order ("PTO"). ³ In this document, which set the blueprint for the proceedings which were to follow, both parties expressly "waived trial" of the case. They stipulated to all the relevant facts, and stated that no factual issues, except for the computation of damages, remained for trial. Moreover, the parties invited the court to decide the proper construction of the contract on cross-motions for summary judgment. The PTO established a briefing schedule and set the length of oral argument on the cross-motions.

Pursuant to the PTO, the parties filed their cross-motions and supporting points and authorities. After an extensive hearing, the trial court granted summary judgment to defendant Jaska, and filed a statement of findings and conclusions.

This appeal followed entry of judgment.

BRICKLAYERS' APPEAL

In reviewing a grant of summary judgment, our task is identical to that of the trial court. In Re New England Fish Co., 749 F.2d 1277 at 1280 (9th Cir.1984). Viewing the evidence in a light most favorable to the party against whom summary judgment is granted, we must determine whether the trial court correctly found that there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. In Re Complaint of McLinn, 744 F.2d 677, 680 (9th Cir.1984).

We will not, however, review an issue not raised below unless necessary to prevent manifest injustice. Kline v. Johns-Manville, 745 F.2d 1217, 1221 (9th Cir.1984), quoting Komatsu, Ltd. v. States Steamship Co., 674 F.2d 806, 812 (9th Cir.1982). Before this court will address such an issue, the proponent "must show exceptional circumstances why the issue was not raised below." Taylor v. Sentry Life Insurance Co., 729 F.2d 652, 655-56 (9th Cir.1984) (per curiam). In the absence of such circumstances, appellants may not upset an adverse summary judgment by raising an issue of fact on appeal that was not plainly disclosed as a genuine issue before the trial court. Komatsu, Ltd., 674 F.2d at 812; see also Sentry Life, 729 F.2d at 655-56.

In the same vein, we will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant's opening brief. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n. 2 (9th Cir.1980); Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (9th Cir.1984) (claims of error on appeal "must be specific"). ⁴

On this appeal, Bricklayers avers in its statement of issues that the trial court erred in granting summary judgment to Jaska. Taken on its face, such a contention would seem to invite plenary review of the grant of summary judgment. A careful reading of appellant's opening brief makes plain, however, that appellants' sole objection to summary judgment is that material factual issues remained for trial. No

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argument, or specific designation of error regarding any of the trial court's legal conclusions, including its construction of the contract, can be reasonably inferred from appellants' brief. Accordingly, we decline to address the merits of Bricklayers' contention below that it was a third-party beneficiary of the MLA in question. ⁵

We proceed...