U.S. West Financial Services, Inc. v. Buhler, Inc. ( 1998 )


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  •                          United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 97-3548MN
    _____________
    U.S. West Financial Services, Inc.,       *
    a Colorado corporation,                   *
    *
    Appellant,                 *
    *
    v.                                 *
    *
    Buhler, Inc., a Minnesota corporation;    *
    Buhler International, Ltd., a Swiss       *
    corporation,                              *
    *   On Appeal from the United
    Appellees,                 *   States District Court
    *   for the District of
    -----------------------------             *   Minnesota.
    *
    U.S. West Financial Services, Inc.,       *
    as assignee of Reuter Recycling of        *
    Florida, Inc., a Florida corporation,     *
    *
    Appellant,                 *
    *
    v.                                 *
    *
    Buhler, Inc., a Minnesota corporation;    *
    Buhler Brothers, also known as            *
    Buhler International, Ltd.,               *
    *
    Appellees,                 *
    -----------------------------              *
    *
    U.S. West Financial Services, Inc.,        *
    as assignee of Reuter Recycling of         *
    Florida, Inc., a Florida corporation,      *
    *
    Appellant,                   *
    *
    v.                                  *
    *
    Buhler, Inc., a Minnesota corporation; *
    Buhler Brothers, also known as             *
    Buhler International, Ltd.,                *
    *
    Appellees.                   *
    ___________
    Submitted: May 13, 1998
    Filed: July 31, 1998
    ___________
    Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
    ___________
    RICHARD S. ARNOLD, Circuit Judge.
    This appeal arises out of the construction of a municipal waste composting
    facility in Pembroke Pines, Florida, by Reuter Recycling of Florida. Buhler, Inc.,
    which is owned by Buhler International, Ltd. (then known as Buhler Brothers, Inc.),
    provided equipment, design, and engineering services for the facility. U.S. West
    Financial Services lent Reuter money to finance the facility. Less than a year after the
    facility began operation, it was shut down by the state because of odor problems.
    Reuter defaulted on its loan payments to U.S. West and assigned its legal rights to U.S.
    West.
    -2-
    U.S. West initiated arbitration against Buhler Inc. and Buhler International on
    fraud and negligence claims. It then alleged substantially the same claims in federal
    suits, against both Buhler parties in its capacity as lender, and against Buhler
    International in its capacity as Reuter’s assignee. The District Court1 stayed both
    actions pending the arbitration award. Ultimately, the arbitration panel awarded no
    damages to U.S. West. Buhler Inc. and Buhler International then moved to confirm the
    arbitrators’ decision, and U.S. West moved to vacate or modify it as to Buhler
    International. The District Court confirmed the award as to both defendants. It
    dismissed U.S. West’s assignee action on grounds of res judicata. In U.S. West’s
    lender action, it granted summary judgment for Buhler Inc. and Buhler International.
    On appeal, U.S. West challenges the dismissal of its assignee action against
    Buhler International and the dismissal of its lender action against both Buhler parties.
    We affirm.
    I.
    In 1990, Reuter and Buhler Inc. agreed that Buhler would design, engineer, and
    provide equipment for the Pembroke Pines facility’s material separation and recovery
    system and composting process. The contract included a requirement that
    controversies arising from it be arbitrated. Later, U.S. West agreed to lend Reuter
    $48,545,000 to finance the facility. Soon after the facility was completed and began
    operation in October 1991, it developed odor problems and was cited and fined for
    violations of state odor regulations. U.S. West lent Reuter an additional $4,700,000
    to address these problems. The facility had to close in November 1992.
    1
    The Hon. David S. Doty, United States District Judge for the District of
    Minnesota.
    -3-
    When the plant’s odor problems began, Reuter initiated arbitration against
    Encorp, the designer of the underground aeration system, for design and construction
    defects, and was awarded $2.5 million. In December 1994, Reuter initiated arbitration
    against Buhler Inc. and Buhler International. Buhler Inc. asked the District Court to
    stop the arbitration, on grounds that the claims should have been addressed in the
    Encorp litigation. The Court allowed the arbitration to proceed.
    In 1995, Reuter defaulted on its loan and assigned its legal rights to U.S. West.
    In January 1996, U.S. West filed its own arbitration complaint against Buhler Inc. and
    Buhler International. It sought damages on theories of fraudulent and negligent
    misrepresentation, promissory estoppel, negligent design and professional malpractice,
    breach of contract, and unjust enrichment. As described below, the Buhler parties
    repeatedly contested Buhler International’s party status.
    Before the arbitration hearing, U.S. West filed two suits. First, with respect to
    the inducement of its loan to Reuter, it asserted against both Buhler parties claims of
    negligent misrepresentation, fraud, and promissory estoppel. Second, as assignee of
    Reuter’s legal rights, and in response to Buhler International’s resistance to inclusion
    in the arbitration, it alleged against Buhler International substantially the same claims
    that it had raised against both Buhler parties in its arbitration complaint.2
    The arbitration hearing was held in November 1996 and lasted 17 days. At its
    conclusion, the panel decided: “Claimant is awarded no damages from Respondents
    on any of its claims.” Appellant’s Add. at 26. The caption of the award notice
    included both Buhler parties.
    2
    Against both parties, U.S. West also alleged breach of a 1986 partnership
    agreement between Reuter and Buhler Inc. This claim is not now before us.
    -4-
    The Buhler parties moved for summary judgment in both federal actions, on
    grounds of res judicata and collateral estoppel. They also sought confirmation of the
    panel’s decision in a state court, pursuant to 9 U.S.C. § 9 (1994) and Minn. Stat. Ann.
    § 572.18 (West 1988). U.S. West removed the confirmation action to federal court
    and sought to vacate or modify the award, as applied to Buhler International only,
    pursuant to 9 U.S.C. §§ 10 and 11 (1994). The District Court confirmed the award as
    to both Buhler parties. In the assignee action, it granted summary judgment in favor
    of Buhler International, on grounds of res judicata. In the lender action, it granted
    summary judgment in favor of both Buhler parties, on the ground that there were no
    material facts in dispute.
    II.
    U.S. West challenges the District Court’s application of res judicata to its
    assignee action against Buhler International. It argues that Buhler International was not
    a party and, therefore, that the arbitration award was not a final decision on the merits
    of its claims against Buhler International. We affirm.
    We assess the preclusive effect of the arbitration award on U.S. West’s assignee
    action under Minnesota law. See Mandich v. Watters, 
    970 F.2d 462
    , 465 (8th Cir.
    1992). Under Minnesota law, “ ‘[a] judgment on the merits constitutes an absolute bar
    to a second suit for the same cause of action, and is conclusive between parties and
    privies . . ..’ ” Dorso Trailer Sales, Inc. v. American Body & Trailer, 
    482 N.W.2d 771
    ,
    774 (Minn. 1992) (quoting Mattsen v. Packman, 
    358 N.W.2d 48
    , 49 (Minn. 1984)
    (citations omitted)). The doctrine “should not be rigidly applied; rather, it focuses on
    whether its application results in an injustice against the party to be precluded.” Sondel
    v. Northwest Airlines, 
    56 F.3d 934
    , 938 (8th Cir. 1995) (citing Houlihan v. Fimon, 
    454 N.W.2d 633
    , 635 (Minn. App. 1990)). A final arbitration award, unless it is set aside
    for a legally sufficient reason, has the same preclusive effect as a judgment.
    -5-
    The procedural history of the arbitration supports the District Court’s finding that
    Buhler International was a party. U.S. West named Buhler International as a respondent
    in its arbitration complaint and attempted to serve the complaint on it. U.S. West never
    asked to dismiss Buhler International formally, and in fact opposed Buhler
    International’s counsel’s proposal to do so. As a formal matter, then, from the time that
    Buhler International was named as an arbitration party to the time when it was included
    in the arbitration award’s caption, its party status never changed.
    We recognize that the Buhler parties resisted the inclusion of Buhler International
    as a party to the arbitration. Buhler Inc.’s response to the arbitration complaint denied
    that Buhler International was a proper party to the arbitration, and Buhler International
    did not serve an answer itself. In February 1996, counsel for the Buhler parties moved
    the arbitration panel to dismiss Buhler International, though the panel did not do so. In
    a May 1996 letter, their counsel reiterated that Buhler International was not a party to
    the arbitration. When U.S. West brought its lender action against the Buhler parties, the
    Buhler parties did not argue that the claims against Buhler International had to be
    arbitrated, as they did regarding the claims against Buhler Inc.
    However, we do not believe that these actions amounted to, or resulted in, the de
    facto dismissal of Buhler International from the arbitration proceedings. U.S. West still
    obtained extensive information from Buhler International, which the arbitration panel
    ordered to participate in discovery despite its objections. Buhler International produced
    approximately fifteen boxes of documents. In fact, the Buhler parties’ counsel informed
    the arbitration panel that he had provided to U.S. West “all nonprivileged documents
    from both Buhler Inc. and Buhler International related to the Pembroke Pines
    Composting Facility . . ..” Appellant’s App. at 833. Additionally, U.S. West deposed
    Herman Hofer, the Buhler parties’ expert in odor and “the Buhler International
    employee most directly involved in the design of the Facility . . ..” Appellant’s App. at
    162 (aff. of Buhler counsel). Though, as U.S. West asserts, these
    -6-
    acts do not themselves render Buhler International a party, they do indicate that U.S.
    West did not lack access to information pertinent to Buhler International’s liability.
    Further, Buhler International’s conduct and knowledge appear to have figured
    prominently in the arbitration hearing. It is true that, in its opening statement at the
    hearing, U.S. West counsel said, “we are not asking this panel for a determination of
    either liability or the amount of damages with respect to Buhler International LTD in
    this case.” Appellant’s App. at 193. However, this statement was immediately
    followed by a disclaimer: “Having said that, I will tell the panel that it’s going to be
    difficult in this case to present the evidence without presenting evidence of the
    involvement of Buhler International LTD. I think the panel is going to hear a lot of
    evidence about where the original design for this composting system came from, who
    was involved and the people from [Buhler International]. So I believe there are some
    common factual backgrounds . . .. ” 
    Id. The record
    indicates that U.S. West did indeed present, and the arbitration panel
    considered, substantial evidence relevant to Buhler International’s liability. U.S. West’s
    arbitration brief alleged odor problems at “the 80 - 100 facilities [Buhler International]
    had designed and engineered.” Appellant’s App. at 215. Its opening statement alleged
    that Reuter had been lied to about odor problems at a Buhler plant in Germany and that
    “major odor problems” at other foreign plants had been concealed. Appellant’s App.
    at 194-95. U.S. West’s assignee action would have depended on proof of these same
    odor problems. The overlap of “common factual backgrounds” is especially significant
    in light of the fact that the alleged odor problems were in plants operated by Buhler
    International, and not its U.S. subsidiary Buhler Inc. As Buhler counsel explained in the
    memorandum supporting the Buhler parties’ application to confirm the award, “only
    Buhler International supplied composting equipment to facilities outside the United
    States” and “only Buhler International had supplied equipment to approximately 80 -
    100 composting facilities.” Appellant’s App. at 146, n.2. U.S. West does not deny
    these assertions.
    -7-
    U.S. West argues that, in the arbitration hearing, “U S WEST tried to show that
    Buhler USA asked others -- including Buhler Int’l., its parent corporation -- how to
    build and design such a plant and what problems had been previously faced and dealt
    with. This is entirely different than stating U S WEST offered the testimony of Buhler
    Int’l’s employee as evidence that Buhler Int’l made false or misleading statements.”
    Appellant’s Reply Br. at 8. However, U.S. West’s opening statement alleged that
    Herman Hofer, the Buhler parties’ odor expert, had concealed evidence of odor
    problems during a test run of the Pembroke Pines facility. Appellant’s App. at 194-95.
    Mr. Hofer was a Buhler International employee. Additionally, in U.S. West’s answers
    to Buhler Inc.’s arbitration interrogatories, it alleged misrepresentations by other Buhler
    International employees. Appellant’s App. at 200. U.S. West does not specify
    instances of alleged fraud, beyond those already explored in arbitration, that it would
    seek to prove in further litigation.
    Because Buhler International technically remained a party throughout the
    arbitration, and because U.S. West presented substantial evidence relevant to Buhler
    International’s liability during the hearing, the District Court’s finding that Buhler
    International had been a party was not error. We believe that the arbitration panel
    considered U.S. West’s claims against Buhler International on their merits fully, and we
    are not convinced that its use of the plural “respondents” in the award was inadvertent.
    We find U.S. West’s other arguments against res judicata unpersuasive. First,
    we reject its challenge that the award is ambiguous and should be remanded for
    clarification, because it did not raise this issue before the District Court. Further, it
    contends that Buhler International cannot benefit from the arbitration award because it
    did not sign the arbitration agreement, and because it was estopped by its resistance to
    inclusion in the arbitration. Noting the District Court’s characterization of the litigation
    process on both sides -- “nobody is being real clear about what they want to
    -8-
    do because I think they also want to maintain the argument the other way,” Appellant’s
    App. at 512-13 -- we hold that these arguments are belied by U.S. West’s own course
    of conduct in these proceedings. See Twomey v. Durkee, 
    291 N.W.2d 696
    , 699 (Minn.
    1980) (“Plaintiffs by acquiescing in and participating in the proceeding in effect
    represented . . . that the dispute was arbitrable, and that the parties would be bound by
    the decision and award . . ..”).
    We therefore hold that the District Court’s application of res judicata did not
    result in “injustice.” 
    Sondel, 56 F.3d at 938
    . Rather, it properly acted “to relieve
    parties of the burden of relitigating issues already determined in a prior action . . ..”
    Buetz v. A.O. Smith Harvestore Products, Inc., 
    431 N.W.2d 528
    , 531 (Minn. 1988).3
    III.
    We also affirm the District Court’s grant of summary judgment in U.S. West’s
    lender action. For evidence of a genuine issue of material fact, U.S. West relied on the
    deposition of Joseph Blankenship, U.S. West’s project manager and loan officer:
    Q.     In any event, did Buhler ever misrepresent anything to you or
    make any fraudulent statements to U S WEST that you are
    aware of?
    A.     No, but if there were problems going on in some of the
    European facilities that Buhler was aware of, they didn’t
    bring them up either. What represents misrepresentation, is
    it omission?
    3
    The motion of U.S. West to supplement the record is granted, but the
    supplemental materials presented do not change our view as to the conclusiveness of
    the arbitration award.
    -9-
    Q.     I will ask you about the omission. Did the
    Buhler folks ever, you think, fail to tell you
    something, did you ever ask them about any
    problems with any of their facilities, did they
    ever lie to you or misrepresent? Maybe your
    response was if there was a problem out there
    and they didn’t tell you about it, that would be
    an omission that you might think of?
    * * *
    A.     I do not believe and I have never felt that Buhler people
    either lied or in the same term [sic] purposefully
    misrepresented.
    Q.     One of the things you just mentioned is you think if they
    knew about some problems in terms of odor, that if they are
    guilty of anything, they are guilty of the sin of omission, if
    you will, for failing to raise the issue?
    A.     I think they probably knew more than they were telling.
    Appellant’s App. at 406-07. Blankenship’s vague statements do not create a genuine
    issue of material fact as to the Buhler parties’ knowledge and misstatement of odor
    problems, key elements of U.S. West’s fraud claims. Summary judgment was therefore
    proper.
    We also affirm the District Court’s denial of U.S. West’s post-judgment motions.
    U.S. West first filed a motion to reconsider, along with additional affidavits from
    Blankenship and another employee, which attested to fraudulent conduct by the Buhler
    parties. The District Court denied this motion: “[n]otwithstanding the procedurally
    defective nature of plaintiff’s motion [failure to comply with the procedural requirement
    of obtaining “express permission” from the court to file such a motion, Local Rule
    7.1(g)], the court has reviewed plaintiff’s motion and determines that it has failed to
    make the requisite showing of compelling circumstances.” Appellant’s App. at 685
    -10-
    (Order at 2 (Sept. 16, 1997)). U.S. West then resubmitted its motion as a Rule 59(e)
    motion to alter or amend the judgment. The Court summarily denied this second
    motion.
    U.S. West admits that the affidavits it wished to submit were available to it before
    the entry of judgment. Appellant’s Reply Br. at 21. It was not an abuse of discretion
    for the Court to deny U.S. West’s Rule 59(e) motion “to introduce new evidence that
    could have been introduced during pendency of the summary judgment motion . . ..”
    Global Network Techs., Inc. v. Regional Airport Auth., 
    122 F.3d 661
    , 665-66 (8th Cir.
    1997) (citation omitted).
    We therefore affirm the judgment of the District Court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -11-