United States v. Carter

• Decision Date: 30 March 1962
• Docket Number: No. 17204.,17204.
• Citation: 301 F.2d 467
• Parties: UNITED STATES of America ex rel. Harry SHERMAN et al., as Trustees of the Laborers Health and Welfare Trust Fund for Northern California, Appellants, v. Donald G. CARTER, Individually, Donald G. Carter, d/b/a Carter Construction Company, Carter Construction Company, Hartford Accident and Indemnity Company, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.2d 467 (1962)

UNITED STATES of America ex rel. Harry SHERMAN et al., as Trustees of the Laborers Health and Welfare Trust Fund for Northern California, Appellants, v. Donald G. CARTER, Individually, Donald G. Carter, d/b/a Carter Construction Company, Carter Construction Company, Hartford Accident and Indemnity Company, et al., Appellees.

No. 17204.

United States Court of Appeals Ninth Circuit.

March 30, 1962.

Gardiner Johnson, Thomas E. Stanton, Jr., Charles P. Scully, San Francisco, Cal., Johnson & Stanton, San Francisco, Cal., of counsel, for appellant.

Dinkelspiel & Dinkelspiel, Richard C. Dinkelspiel and John F. Taylor, San Francisco, Cal., for appellee Hartford Accident & Indemnity Co.

Before ORR, POPE and HAMLIN, Circuit Judges.

POPE, Circuit Judge.

This action, here on appeal for the third time, was first filed in the district court in April, 1954. The appellee Carter, a building contractor who had contracted with the United States to construct certain public buildings, was a party to a collective bargaining agreement with his employees, whereby he was required to pay into a "health and welfare fund" the sum of 7½ cents per hour for each hour worked by laborers employed by him. As Carter failed to make all the contributions called for, the appellant trustees of such fund sued invoking the Miller Act, (40 U.S.C.A. §§ 270a, 270b), joining as defendant the appellee indemnity company which had furnished the payment bond called for by the Act.

The contract provided that in case of default in the payment of the required contributions, the trustees of the fund should be entitled to certain liquidated damages to be computed as stated in the contract; it also provided for payment of attorneys' fees, court costs, and other legal expenses, as follows: "If any individual employer defaults in the making of such contributions or payments and if the Board consults legal counsel with respect thereto, or files any suit or claim with respect thereto, there shall be added to the obligation of the employer who is in default, reasonable attorneys' fees, court costs and all other reasonable expenses incurred by the Board in connection with such suit or claim."

The trial court granted summary judgment for the defendants. Upon appeal to this court that judgment was affirmed. United States for Benefit and on Behalf of Sherman v. Carter, 9 Cir., 229 F.2d 645. Thereupon the trustees petitioned for certiorari, which was granted; and after hearing in the Supreme Court the judgment of this court was reversed and the cause was remanded to the district court for further action consistent with the Supreme Court's opinion. United States for Benefit and on Behalf of Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776.¹

The Supreme Court held that the plaintiffs were entitled to sue on the bond and to recover the stipulated contributions. The Court said: "For purposes of the Miller Act, these contributions are in substance as much `justly due' to the employees who have earned them as are the wages payable directly to them in cash." The Court also held that the trustees were entitled to recover the stipulated liquidated damages and attorneys' fees and other expenses of the litigation. Concerning this the Court said: "The trustees' claim for liquidated damages, attorneys' fees, court costs and other related expenses of this litigation has equal merit. The contractor's obligation to pay these items is set forth in the trust agreement. It is stipulated that they form a part of the consideration which Carter agreed to pay for services performed by his employees. If the employees are to be `paid in full' the `sums justly due' to them, these items must be included. Their amount, however, remains to be determined. We hold that the Miller Act makes the surety liable on its payment bond for the delinquent contributions to the fund, together with the additional items above described."

Following the remand, the plaintiffs moved for summary judgment for the unpaid contributions, for liquidated damages, and for $1751 in costs and miscellaneous expenses in connection with the suit and $9960 as attorneys' fees. The court granted judgment for the unpaid contributions and the liquidated damages (as to which two items there was and is no dispute), and awarded $2175 attorneys' fees; $367.97, costs and expenses "incurred by plaintiff in the district court and in the United States Court of Appeals"; and $219.11, for costs expended by plaintiffs in the Supreme Court "which are allowed by the mandate of said Court". Plaintiffs were awarded interest upon the various items of costs for periods stated in the judgment.

The court made no award on account of attorneys' fees, costs or expenses incurred in connection with carrying the case to the Supreme Court other than the $219.11 for costs taxed by that Court, and made no allowance for attorneys' fees, costs or expenses in connection with the presentation of the case on remand in the district court, and expressly stated that in entering the judgment the court was limiting defendant's liability "to the fees and costs incurred up to the time of judgment in the Court of Appeals."

The plaintiff trustees appealed from the judgment thus entered to this court. On that second appeal appellants stated their points on appeal to be that the court erred in limiting the defendants' surety company's liability to those attorneys' fees and costs which had been incurred up to the time of judgment in the Court of Appeals, and that the attorneys' fees should have been allowed in a greater amount. They contended that the court was in error in making allowance for attorneys' fees, court costs and other related expenses in amounts less than the total amount incurred by plaintiffs for these items. They asserted they were entitled to an additional allowance for attorneys' fees, court costs and other related expenses incurred subsequent to filing their motion for summary judgment upon remand from the Supreme Court to the district court.

It is to be noted that while the appellants thus assert that in fixing attorneys' fees, court costs and expenses incurred by them up to the time of judgment in the court of appeals the court should have allowed larger sums, and also asserted a claim for additional allowances for those costs proposed in connection with current proceedings, yet the primary point made was the failure of the court below to make any allowance other than the $219.11, previously mentioned, for attorneys' fees, costs and expenses incurred by plaintiffs in connection with proceedings in the Supreme Court.

This court, upon the second appeal, stated: "After the remand, the district court again considered the case and made certain awards of court costs and attorneys' fees. In said awards the district court excluded reimbursement for attorneys' fees and expenses incurred by appellants in taking the case to the Supreme Court of the United States. In this we think the court erred. In our opinion, this was an expense clearly within the bond and mandate of the Supreme Court for which appellants were entitled to receive a reasonable amount as reimbursement."

The appellees had taken no cross-appeal and in their brief on that second appeal to this court they made no contention or argument that the award made by the district court for attorneys' fees, costs and expenses, was excessive. Indeed, appellees, stated: "The decision of the district court not only is consistent with the law of damages, but also reaches the fairest result under the circumstances." Their contention was limited to the proposition that "Plaintiffs are not entitled to additional attorneys' fees, costs and expenses incurred in this proceeding."

Notwithstanding the fact that there was no contention in this court on that second appeal that the award in respect to plaintiffs' expenses for these items in the district court to the date of the first judgment in the Court of Appeals was excessive or exceeded a reasonable amount to that date, this court concluded its opinion as follows: "We reverse the judgment and remand so that the district court may have a free hand in determining the amount of the attorneys' fees, expenses and court costs due appellants for the entire litigation, including the appeal to the Supreme Court and the instant appeal to this court."

Upon that further remand the district court, understandingly, had some difficulty, as the record shows, in arriving at a conclusion as to just what this court required it to do. It is clear that by the time the mandate following this second appeal reached the district court some additional allowable fees, costs and expenses had accrued. As is noted above, the court's first judgment in respect to the attorneys' fees, costs and expenses, had with the exception of $219.11, costs taxed by the Supreme Court, covered only attorneys' fees, costs and expenses incurred by the plaintiffs through the first appeal to this court. The court then in the judgment now under appeal awarded plaintiffs the sum of $441.39, for costs incurred by plaintiffs on the second appeal, and $848.42, costs and expenses incurred in the Supreme Court.²

With respect to the award of attorneys' fees, it is to be noted that in its judgment following remand from the Supreme Court which awarded attorneys' fees only to the date of the judgment of this court on the first appeal, the award had been $2175. The court on its final trial, after taking into account as required by our mandate the award of attorneys' fees incurred in the Supreme Court proceedings, and attorneys' fees incurred in connection with the hearing on remand to the district court from the Supreme Court, and attorneys' fees incurred on the second appeal to this court, awarded only $1500 for all attorneys' fees.

Throughout the litigation each of the parties has presented its own theory as to what the court should take into consideration in fixing fees in a case...