Leslie v. Grupo ICA, 98-15181

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: DAVID R. THOMPSON
• Citation: 198 F.3d 1152,1999 WL 1093118
• Parties: (9th Cir. 1999) STEPHEN LESLIE, dba International Projects Development, Plaintiff-Appellant, v. GRUPO ICA; ICA CONSTRUCTION CO; ICA INTERNACIONAL S.A.DE C.V.; ANDRES CONESA RUIZ; EMPRESAS ICA SOCIEDAD CONTROLADORA S.A.DE C.V., Defendants-Appellees
• Docket Number: No. 98-15181,98-15181
• Decision Date: 06 December 1999

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198 F.3d 1152 (9th Cir. 1999) STEPHEN LESLIE, dba International Projects Development, Plaintiff-Appellant,
v.
GRUPO ICA; ICA CONSTRUCTION CO; ICA INTERNACIONAL S.A.DE C.V.; ANDRES CONESA RUIZ; EMPRESAS ICA SOCIEDAD CONTROLADORA S.A.DE C.V., Defendants-Appellees. No. 98-15181 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted August 12, 1999
Filed December 6, 1999

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Copyrighted Material Omitted

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COUNSEL: James Dirks, Sacramento, California; David K. Sergi, San Marcos, Texas, for the plaintiff-appellant.

Andrea G. Asaro, Rosen, Bien & Asaro, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-94-03059-VRW

Before: David R. Thompson and Susan P. Graber, Circuit Judges, and Earl H. Carroll, District Judge.¹

OPINION

DAVID R. THOMPSON, Circuit Judge:

Stephen K. Leslie ("Leslie") appeals the district court's summary judgment dismissing his diversity action against ICA Construction Corporation, a Florida corporation; ICA Internacional, S.A. de C.V., and Empresas ICA, Sociedad Controladora, S.A. de C.V., both Mexican corporations; and ICA executive vice-president Andres Conesa Ruiz (collectively "ICA" or "Grupo ICA"). Leslie asserts that ICA breached an oral contract to pay him a $100,000 flat fee and a percentage-based fee of more than $1,250,000 for facilitating an introduction between ICA and Perini Corporation, who then formed a joint venture for a construction project. Although the district court recognized that Leslie's deposition testimony and sworn declaration were sufficient, if believed, to survive summary judgment, the court concluded that Leslie's self-serving assertions were so contradicted by Leslie's correspondence with ICA as to be unbelievable. On that basis, the district court granted summary judgment in favor of ICA.

We have jurisdiction under 28 U.S.C. S 1291, and we reverse the district court's summary judgment. We affirm, however, the district court's denial of Leslie's motion for recusal. We lack jurisdiction over, and do not address, the district court's award of attorney fees and costs to ICA.

FACTUAL BACKGROUND

The dilemma at the heart of this case is that the plaintiff, Leslie, created two parallel versions of the facts. In his deposition and declaration, he presents a fairly straightforward tale of ICA's breach of an oral contract to pay him a flat fee of $100,000 and a percentage of the ICA-Perini joint project. On the other hand, a long trail of letters from Leslie to ICA appears to show that ICA and Leslie neither formed a contract nor even discussed some of the terms upon which Leslie alleges they agreed.

The parties agree that Leslie aided ICA in forming a joint venture between ICA and Perini Corporation, a major U.S. engineering and construction company. In October 1991, Leslie arranged a meeting between ICA and Perini executives. At about that time, Perini agreed to pay Leslie $35,000 if a joint venture between Perini and ICA was ultimately formed. In February 1992, ICA, Perini, and a third company formed a joint venture. In early June 1992, the ICA-Perini joint venture won the bidding process for a tunnel project in Chicago valued at $168 million. Perini paid Leslie $35,000. On several occasions before Leslie filed this action, ICA also offered to pay Leslie $35,000, but Leslie rejected that offer.

According to Leslie's deposition testimony and sworn declaration, an ICA executive first approached Leslie in 1990 for help in forming a joint partnership between ICA and a major U.S. engineering and construction company. In December of that year, Leslie met with ICA executive Gumaro Lizarraga, and they agreed that ICA would pay Leslie five percent of ICA's gross portion of the first successfully bid joint venture project, plus a flat fee

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of $100,000. Two other ICA executives later reaffirmed that agreement.

Again, according to Leslie's deposition and declaration, ICA executive vice-president Andres Conesa Ruiz ("Conesa") renegotiated Leslie's contract just before the October 1991 meeting between executives of ICA and Perini. Leslie says that he and Conesa modified Leslie's compensation from a one-time fee for a single joint venture of five percent plus $100,000 to a fee of three percent per joint venture plus a $35,000 one-time fee. Leslie submitted to the district court a letter "memorializing" this agreement which he allegedly delivered to Conesa at the October 1991 meeting. Although an ICA representative later attempted to renegotiate Leslie's flat fee, according to Leslie, the representative assured him that ICA would pay the percentage fee. After the ICA-Perini joint venture's first successful bid on the Chicago project, ICA refused to pay Leslie more than a $35,000 flat fee.

Correspondence between Leslie and ICA appears to tell a different story. Although Leslie asserted in this litigation that he had an oral contract with ICA in 1990, his correspondence suggests he did not. He wrote to an ICA executive in September 1991 stating: "If ICA and Perini form a working association, I would at that time like to receive financial recognition . . . . The terms and amount . . . will be reasonable and be negotiated jointly by ICA and Perini with me . . . . " During 1991 and 1992, Leslie and ICA exchanged numerous letters and draft contracts, all of which address a one-time flat fee without reference to a percentage fee. Leslie insisted in one letter that "[t]o be proper and in force the final letter contract must be on company letterhead and signed in ink."

After the ICA-Perini venture won the Chicago project in 1992, Leslie wrote to ICA stating that ICA and Leslie "ha[d] not yet executed [a] contract." He submitted with the letter a draft contract for a $50,000 flat fee. A few months later, Leslie wrote to Conesa, insisting that Leslie and ICA had agreed "that if ICA delayed signing of my fee contract until after a joint project with Perini was procured, that my fee would raise significantly to [$80,000]." The letter also stated: "Normally the compensation for such services would be a base fee plus a percentage of the valuation of the ICA percentage of the first procured ICA-Perini joint project . . . . I selected the flat fee in deference to a request from[ICA]." Leslie sent a similar letter to another ICA executive, stating that ICA had "acknowledged and reconfirmed on multiple occasions" that ICA would pay him a fee of $80,000 and that the $80,000 fee was "in lieu of the other post procured project option of payout of a base fee plus percentage of the first project."

Finally, in November 1992, Leslie wrote to ICA's chief executive officer, Gilberto Borja Navarrette. The letter stated:

"ICA owes me two fees for my ICA commissioned work . . . . The fees were agreed to by [Conesa] . . . . The developmental/ finder fee is a one-time $1,259,250.00 US fee. The ICAPerini joint venture supplemental fee . . . is $80,000.00 US."

Leslie attempts, particularly in his sworn declaration, to reconcile the inconsistencies between his current version of events and his prior letters. Leslie asserts that ICA, through an employee who was Leslie's friend, assured Leslie throughout the relevant period that ICA would pay the percentage fee even though ICA tried to reduce the amount of Leslie's flat fee. Leslie contends that this explains why none of his letters refers to a percentage fee. He adds that some of his letters "were written in haste . . . with little if any proofreading," were intended merely to stall ICA's attempt to renegotiate the flat fee, or reflected oral understandings not explicitly discussed. Finally, he asserts that by 1992 he "was desperate, suffering from severe emotional stress and greatly depressed due to [his] dire financial straits and [his] dawning realization that ICA might try to avoid paying [him] what[he]

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was owed . . . ." As a result, he says that his writing became "garbled and confused" and focused exclusively on immediate payment of his flat fee. ICA contends these assertions amount to nothing more than a feeble attempt to explain away hard facts that belie Leslie's claims.

PROCEDURAL HISTORY

On June 1, 1994, Leslie, in pro per, filed this action against ICA in state court in San Francisco. ICA removed the action to federal court on the basis of diversity jurisdiction. In Leslie's current amended complaint, he asserts claims for breach of oral and written contract, quantum meruit, promissory estoppel, false promise, and negligence.

The history of this action, like the underlying facts, is tortured. Leslie has been through four sets of attorneys, two sets of whom withdrew because of ethical conflicts. The district court has given Leslie numerous extensions of time and has accepted filings after deadlines. The district court has imposed monetary sanctions on three of Leslie's various attorneys. At one point, the district court entered summary judgment in favor of ICA on the ground that Leslie had failed to file his opposition to ICA's motion on time. The district court reconsidered after Leslie filed a motion accompanied by a declaration from one of his attorneys, Timothy F. Perry, in which Perry stated that his ability to represent Leslie had been impaired by attention deficit disorder and substance abuse. The summary judgment order was vacated, and Leslie's tardy submissions were considered. The court then granted the summary judgment that is the subject of this appeal.

The district court recognized that ICA had "not disputed that Leslie's testimony, if believed, would be sufficient evidence of an oral contract to survive summary judgment." After reviewing the record in detail, however, the court stated that "the only reasonable conclusion to be drawn from the evidence in this case is that Leslie has committed perjury and...