Gamble, Simmons & Co. v. Kerr-McGee Corp. , 30 F. App'x 764 ( 2002 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 31 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    GAMBLE, SIMMONS & COMPANY,
    Plaintiff-Appellee,
    v.                                             Nos. 00-6062 & 00-6306
    (D.C. No. 95-CV-256-C)
    KERR-MCGEE CORPORATION,                              (W.D. Okla.)
    Defendant-Appellant.
    ORDER AND JUDGMENT            *
    Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
    BRISCOE , Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Kerr-McGee Corporation appeals from the district court’s orders granting
    summary judgment in favor of Gamble, Simmons & Company (Gamble Simmons)
    on Gamble Simmons’ complaint, awarding Gamble Simmons prejudgment
    interest, and vacating its earlier award of attorney’s fees to Kerr-McGee as
    a prevailing party.
    This case is before us for a second round of appellate consideration. Most
    of the pertinent facts are recited in our prior opinion in the case,   Gamble,
    Simmons & Co. v. Kerr-McGee Corp.          , 
    175 F.3d 762
    (10th Cir. 1999), and we do
    not repeat them in detail here.
    Gamble Simmons sued Kerr-McGee to recover sums allegedly due for tax
    consulting services. Gamble Simmons performed the services under a contract
    which called for Gamble Simmons to review sales and use tax assessments for the
    years 1982-84 issued to Kerr-McGee by the Louisiana Department of Revenue
    and Taxation (Department). Under the terms of the contract, Kerr-McGee agreed
    to compensate Gamble Simmons in
    an amount equal to forty percent (40%) of the amount, if any, by
    which the total amounts of taxes, penalties and/or interest calculated
    through the date of this Agreement heretofore paid by Kerr-McGee to
    its vendors, the State of Louisiana and/or assessed by the Department
    but remain unpaid as of the date hereof, are refunded or reduced[.]
    Appellant’s App., Vol. I at 28-29.
    -2-
    Gamble Simmons obtained a very favorable outcome for Kerr-McGee.
    After Gamble Simmons completed its examination, the Department admitted not
    only that Kerr-McGee owed no additional taxes or interest for the years 1982-84,
    but that it had actually overpaid taxes in the amount of $1,447,985. Rather than
    refunding this entire amount directly to Kerr-McGee, however, the Department
    refunded a portion of the amount and applied the remainder to offset taxes and
    interest that Kerr-McGee owed for 1985-87. The use of this offset has created
    a significant disagreement between the parties about computation of Gamble
    Simmons’ compensation.
    In our previous decision, we determined that Gamble Simmons was not
    entitled to compensation for any refund of payments Kerr-McGee made to the
    Department after the date of the agreement.         1
    We noted, however, that the district
    court’s order was problematic on this point, “because it does not specifically
    address the issue of the alleged post-agreement payments, or sufficiently explain
    1
    Our previous decision in this matter came after the district court entered a
    final judgment granting Kerr-McGee’s motion for summary judgment and
    awarding Gamble Simmons $665,418 for its services–“the exact amount
    Kerr-McGee had already paid.”     Gamble, Simmons , 175 F.3d at 766. In that
    decision, we also determined that (1) the contract was unambiguous; (2) Gamble
    Simmons was not entitled to any portion of statutory interest the Department of
    Revenue included as part of the refund; (3) Gamble Simmons was not entitled to
    forty percent of interest reductions Kerr-McGee realized in the 1985-87 audit
    period through application of the 1982-84 tax refund; and (4) Gamble Simmons
    was not entitled under the contract to examine Kerr-McGee’s records for years
    subsequent to 1982-84, except to the extent incidental to the 1982-84 audit.
    -3-
    its rationale for determining that Kerr-McGee only owes Gamble Simmons what
    it had previously paid.”   
    Id. at 772-73.
    We therefore remanded
    for further proceedings with regard to the discrete issue of the
    post-agreement payments and their effect on the ultimate calculation
    of Gamble Simmons’ compensation. On remand, the district court
    should afford the parties the opportunity to present evidence on the
    issue of the disputed post-agreement payments and provide a final,
    accurate calculation of Gamble Simmons’ compensation based on our
    rulings in this case.
    
    Id. at 773.
    On remand, the district court received further evidence and conducted
    further proceedings on the issue of post-agreement payments. The parties
    essentially agreed on the figures for post-agreement payments, but disagreed
    radically on how those payments should be treated under the contract and under
    the scope of our mandate. The district court concluded:
    Kerr-McGee’s post-agreement payments were reduced by application
    of the tax credit generated by Gamble Simmons. Therefore, it falls
    within the class of items on which Gamble Simmons’ contingency fee
    must be calculated. It is a reduction in taxes that was generated
    during the audit period.
    
    Id. at 216.
    Based on this finding, the district court awarded Gamble Simmons
    compensation on the post-agreement payments. Kerr-McGee contends that this
    finding exceeded the scope of the mandate we issued in our previous opinion.
    We agree.
    -4-
    “This court is vested with the authority to interpret its own mandate.”
    Burton v. Johnson , 
    975 F.2d 690
    , 693 (10th Cir. 1992). “Under [the law of the
    case] doctrine, once a court decides an issue, the same issue may not be
    relitigated in subsequent proceedings in the same case. An important corollary of
    the doctrine, known as the ‘mandate rule,’ provides that a district court must
    comply strictly with the mandate rendered by the reviewing court.”   Ute Indian
    Tribe v. Utah , 
    114 F.3d 1513
    , 1520-21 (10th Cir. 1997) (quotations and citations
    omitted).
    In our previous decision, we specifically held that Kerr-McGee was entitled
    to exclude post-agreement payments from the calculation of Gamble Simmons’
    compensation:
    Kerr-McGee claims it has paid Gamble Simmons everything it owes,
    and explains the relatively small monetary difference between the
    amount it paid and the amount Gamble Simmons requests as
    attributable to certain “post-agreement payments” it made to the state
    of Louisiana. Kerr-McGee claims it made these payments to satisfy
    tax liabilities arising from Department audits encompassing the years
    1985-1987, and that the Department later refunded the payments after
    it determined Kerr-McGee had overpaid its tax liabilities for
    1982-1984. Kerr-McGee argues that because it made the payments
    after contracting with Gamble Simmons, it need not include these
    amounts in its compensation calculations. In support of this claim,
    Kerr-McGee cites the terms of the contract which limit Gamble
    Simmons contingent interest to forty percent of any refund or
    reduction of amounts paid or assessed as of the date of the
    agreement.
    -5-
    We agree with Kerr-McGee to the extent that the contract
    unambiguously limits Gamble Simmons’ compensation to payments
    or assessments made prior to the execution of the agreement . . . .
    Gamble Simmons has no viable claim under the strict contractual
    language to any refund of payments Kerr-McGee made, if any,
    subsequent to the agreement date. The contract is clear on this point,
    and its interpretation is properly the subject of summary adjudication.
    Gamble, Simmons , 175 F.3d at 772.
    Under the mandate previously issued in this case, Gamble Simmons’ forty
    percent compensation should have been figured only on the amounts Kerr-McGee
    paid or was assessed at the time the Agreement was signed. We merely directed
    the district court to determine what amount of payments Kerr-McGee made after
    May 22, 1991, so that these payments could be excluded from the calculation of
    Gamble Simmons’ percentage. The district court went beyond the scope of the
    mandate and determined that Gamble Simmons was entitled to compensation for
    the post-agreement payments, a finding directly contrary to our prior holding in
    the case.
    We therefore reverse the district court’s order awarding judgment in favor
    of Gamble Simmons in the amount of $34,760.60. On remand, the district court
    should address the specific issue identified in our previous mandate: the amount
    of payments Kerr-McGee made subsequent to the date of the agreement and their
    effect on the mathematical calculation of Gamble Simmons’ compensation.
    -6-
    The remaining issues in this appeal involve whether the district court
    properly awarded Gamble Simmons pre-judgment interest and whether it properly
    vacated its previous award of attorney’s fees to Kerr-McGee and held that
    Kerr-McGee was no longer a prevailing party. Since we have determined the
    district court exceeded the scope of its authority in granting judgment in favor of
    Gamble Simmons, the pre-judgment interest award must also be vacated. On
    remand, the district court should further reconsider its order vacating the award of
    attorney’s fees in favor of Kerr-McGee in light of this order and judgment.
    The judgments of the United States District Court for the Western District
    of Oklahoma granting judgment in favor of Gamble Simmons in the amount of
    $34,760.60, awarding prejudgment interest on that award, and vacating the award
    of attorney’s fees in favor of Kerr-McGee are VACATED, and the case is
    REMANDED for further proceedings in light of this order and judgment.
    Entered for the Court
    Wade Brorby
    Senior Circuit Judge
    -7-
    

Document Info

Docket Number: 00-6062, 00-6306

Citation Numbers: 30 F. App'x 764

Judges: Briscoe, Brorby, Seymour

Filed Date: 1/31/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023