Unpublished Disposition, 872 F.2d 432 (9th Cir. 1989)
Annotate this CaseUNITED STATES of America, for the Use of HYUN JOONCORPORATION, Plaintiff-Appellee/Cross-Appellant,v.TRANS WORLD MAINTENANCE INC.; Reliance Insurance Company,Defendants-Appellants/Cross-Appellees.
Nos. 87-2659, 87-2660.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 12, 1989.Decided April 18, 1989.
Before WILLIAM A. NORRIS, NOONAN and LEAVY, Circuit Judges.
MEMORANDUM*
This action was brought under the Miller Act, 40 U.S.C. §§ 270e-270d (1982 and Supp.III 1985), for the benefit of the Hyun Joon Corporation (Hyun Joon). The defendants were found liable for breach of contract. The dispute on this appeal is only as to certain elements of damages, attorney's fees and interest awarded by the district court. We affirm in part, reverse in part and remand.
DAMAGES
We will not reverse an award of damages unless we are left with "the definite and firm conviction that a mistake has been committed." See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied 469 U.S. 824 (1984) (citations omitted). In this case we do not have such a definite and firm conviction as to the damages awarded, except as to one item.
A subcontract between Hyun Joon and Samuel Garrison provided that Hyun Joon was to pay Garrison 9% of its contract billing for contract management services. Garrison was also the general manager of Trans World Maintenance and was being paid by this company for his managerial services. The district court found that the contract between Garrison and Hyun Joon was "in essence" a contract between Trans World Maintenance and Hyun Joon and ruled that because Garrison was also compensated by Trans World Maintenance, Hyun Joon had no obligation to pay him. But there was a valid contract with Hyun Joon to pay Garrison. That he was also being paid by Trans World Maintenance did not diminish Hyun Joon's obligations. The district court was clearly in error in not reducing the amount owed Hyun Joon by 9% of Hyun Joon's invoices.
The district court awarded attorney's fees and 12% interest to Hyun Joon. Both of these awards were erroneous. United States ex rel. Getz Bros. v. Markowitz Bros., 383 F.2d 595 (9th Cir. 1967). No attorney's fees could be awarded. The correct interest rate was 6%.
Hyun Joon's request for attorney's fees on this appeal is denied. Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part and remanded for judgment in accordance with this disposition.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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