[00:00:02] Speaker 02:
So you're Mr. Meyer, is that the way you pronounce it?

[00:00:04] Speaker 02:
Yes, sir.

[00:00:05] Speaker 02:
Excellent.

[00:00:06] Speaker 02:
Yes, your honor.

[00:00:10] Speaker 02:
It's a made-up name.

[00:00:12] Speaker 02:
My family were Larson's who moved to Minnesota from Norway, and there were too many Larson's up there.

[00:00:20] Speaker 02:
And so they actually, when they moved, they switched their name and created Meyer.

[00:00:24] Speaker 00:
There you go.

[00:00:25] Speaker 00:
And we have ever since.

[00:00:26] Speaker 00:
What was the reason for the Myers push?

[00:00:28] Speaker 00:
Instead of some other name like port CB.

[00:00:31] Speaker 02:
You know you'd have to ask them.

[00:00:33] Speaker 02:
They are much much older than I unfortunately Very well I'm ready whenever if you see this.

[00:00:42] Speaker 02:
Thank you your honors and may it please the court My name is David Meyer from the law firm of Queen Emanuel or Carden Sullivan And I'm here on behalf of the petitioner appellant drum Lodge LLC

[00:00:53] Speaker 02:
This appeal involves two issues that, even taking into account the deference that is given to arbitration panels, we believe is important to raise to ensure that parties' contractual agreements are abided by and that a fair hearing is provided to Drum Lodge LLC.

[00:01:13] Speaker 02:
So the first issue I'd like to address relates to the award of prevailing party attorney's fees to Martell Construction, Inc., the appellee.

[00:01:23] Speaker 02:
The law here is clear and I believe agreed upon it's California law and California law says that absent a contrary agreement Each party is responsible for its own attorneys fees, and that's Austin the all-state for Cal app 1812 Forgive me.

[00:01:45] Speaker 00:
I I thought that we were dealing with construction rule 48d to

[00:01:51] Speaker 00:
California Civil Code 1717 is a very interesting statute with which we deal from time to time, but is that at play here?

[00:01:59] Speaker 02:
So I do believe that construction rule 48 applies here.

[00:02:04] Speaker 00:
And if that's the case, my understanding is at least Martell takes the position that both parties agreed that there was going to be mutual attorney fees.

[00:02:14] Speaker 00:
Do you disagree with that?

[00:02:15] Speaker 02:
I agree that the rule applies.

[00:02:18] Speaker 02:
I disagree that both parties agreed that a prevailing party's attorney fee would apply.

[00:02:24] Speaker 00:
But the arbitration panel concluded otherwise, right?

[00:02:27] Speaker 02:
I don't agree with that.

[00:02:28] Speaker 00:
You don't agree with that?

[00:02:28] Speaker 00:
Okay.

[00:02:29] Speaker 02:
And I think it's important, and I want to walk through the language, because I think what construction rule 48 says is that if both parties seek prevailing party attorney's fees, that can act as a rule that says

[00:02:44] Speaker 02:
Okay.

[00:02:45] Speaker 02:
Everyone agrees we're going to do that.

[00:02:48] Speaker 03:
Now, where I disagree.

[00:02:49] Speaker 03:
But identity, the fees under indemnity don't do that?

[00:02:53] Speaker 03:
Is that basically, is that a summary of your position?

[00:02:56] Speaker 03:
Correct.

[00:02:57] Speaker 03:
And that's a very specific, it's a California's rule that says the reciprocity about indemnity.

[00:03:04] Speaker 03:
So if one side, if you have an indemnity provision, both sides get it.

[00:03:07] Speaker 02:
I don't think that's been presented to the court.

[00:03:09] Speaker 02:
I don't think that's been argued.

[00:03:11] Speaker 02:
I don't think it applies here.

[00:03:13] Speaker 02:
I think that the argument, yeah.

[00:03:14] Speaker 03:
But if we're, yeah, I suppose, assume for a second that's true, you know, how does that interplay with, and I'm just asking because I'm curious, how does that interplay with our review of arbitration decisions is usually fairly deferential, right?

[00:03:30] Speaker 03:
So if the arbitrators may have, I know they didn't talk about that, but if they may have taken that into consideration,

[00:03:37] Speaker 03:
then would we, you know, would we be allowed to overturn that if it seemed like that would be a reasonable, as long as it wasn't an outlandish decision, as long as any jurors could have reached that sort of decision?

[00:03:50] Speaker 02:
Respectfully, I believe the answer is no, because what we look at is what the parties agreed to present to the arbitrators.

[00:03:58] Speaker 02:
We look at what the arbitrators considered, addressed,

[00:04:02] Speaker 02:
and discussed, and that is construction rule 48.

[00:04:05] Speaker 04:
Isn't there a notion though that you sort of changed or expanded the scope of your request, that towards the end of the arbitration you requested reasonable attorney's fees?

[00:04:15] Speaker 02:
No, Your Honor, and I think that's very important.

[00:04:19] Speaker 02:
The written record is absolutely clear.

[00:04:22] Speaker 02:
There's not one piece of written paper where Drum Lodge expanded its request

[00:04:29] Speaker 02:
to prevailing party attorneys.

[00:04:30] Speaker 04:
But the arbitrator is so found, correct?

[00:04:32] Speaker 02:
I don't believe that they did, Your Honor.

[00:04:35] Speaker 02:
Okay.

[00:04:35] Speaker 02:
And I would direct you to... Can I just... Yeah, please.

[00:04:38] Speaker 00:
I just want to be sure, because we were both... You said there's no paper that says that.

[00:04:43] Speaker 00:
Yes.

[00:04:43] Speaker 00:
My understanding is that part of this was oral, and that's what the arbitrators understood.

[00:04:49] Speaker 00:
Is that incorrect?

[00:04:50] Speaker 02:
It is correct that part of it is oral, but I would like to direct the court, and I'm happy to walk through it, to what the arbitrators actually found.

[00:05:00] Speaker 02:
They spoke to the oral discussions.

[00:05:04] Speaker 02:
They never once found, and this is, you can look at one ER 30, that's the interim ruling.

[00:05:14] Speaker 02:
The panel never once found that Drumlodge orally

[00:05:20] Speaker 02:
in writing, in any other form or format, requested prevailing party attorney's fees.

[00:05:29] Speaker 02:
That's what construction rule 48 speaks to.

[00:05:32] Speaker 00:
I can say, we look at a different record, I think.

[00:05:35] Speaker 00:
That's not my understanding.

[00:05:36] Speaker 00:
My understanding is I don't remember any recitation of California Civil Code 1717A.

[00:05:43] Speaker 00:
They cited construction rule 48D2I and understood

[00:05:49] Speaker 00:
that both parties had requested that.

[00:05:52] Speaker 00:
They didn't say it was in writing, but they understood from the oral presentation that that's what both parties were asking for.

[00:05:58] Speaker 00:
Isn't that enough in an arbitration setting?

[00:06:01] Speaker 02:
Respectfully, we submit no.

[00:06:02] Speaker 02:
Why?

[00:06:05] Speaker 02:
Because I'm looking at one ER 30, and it said, this is a quote from the arbitration panel, at the end of the evidentiary hearing on June 28, 2023,

[00:06:16] Speaker 02:
The panel chair inquired whether the parties were seeking an award of attorney's fees.

[00:06:20] Speaker 02:
Council for Martell and for Drumm Lodge each answered affirmatively.

[00:06:24] Speaker 02:
Now, I don't dispute that Council for Martell answered affirmatively.

[00:06:30] Speaker 02:
They found that Drumm Lodge did too.

[00:06:32] Speaker 02:
Because we requested attorney's fees under the indemnification provision.

[00:06:36] Speaker 04:
Where is that indicated in the arbitrators?

[00:06:41] Speaker 04:
notation.

[00:06:42] Speaker 04:
I'm also looking just for your information at 3ER57879.

[00:06:52] Speaker 04:
At this point you're citing to the interim findings, correct?

[00:06:55] Speaker 02:
Correct.

[00:06:58] Speaker 02:
And what the panel said in the interim decision is that after their interim decision, and this is again 1ER30, it says

[00:07:07] Speaker 02:
that the parties can file any objections to any request for attorney's fees in the second round of briefing.

[00:07:14] Speaker 02:
In the second round of briefing, we raised the exact point that I believe Your Honor is referring to, is that we never agreed that there was some mutual fee-shifting agreement here.

[00:07:26] Speaker 02:
We made clear in the objections that at all times throughout this process,

[00:07:33] Speaker 02:
only way that Drumm Lodge requested attorney's fees was through a one-sided contractual indemnification provision.

[00:07:43] Speaker 02:
And so what they're doing is... Forgive me.

[00:07:46] Speaker 00:
Again, I think you're looking at a different record than I am.

[00:07:50] Speaker 00:
Because if we take as given what you just said, what was the arbitrator's response to that?

[00:07:57] Speaker 00:
Because my understanding is when they came away with it, they understood that under the

[00:08:04] Speaker 00:
rule 48D2 that both sides had requested it.

[00:08:08] Speaker 00:
That's what they awarded.

[00:08:10] Speaker 00:
I didn't see anything in a colloquy between attorneys for Drum Lodge and the arbitrators that suggested there was any ultimate dispute or if there was a dispute that it was resolved against Drum Lodge.

[00:08:28] Speaker 00:
Is that correct?

[00:08:29] Speaker 02:
I think that I would direct you to 3ER578 to 579 and 3ER603, note 11.

[00:08:39] Speaker 02:
And in both of those, it makes clear that Drum Lodge was seeking to enforce a contractual provision.

[00:08:48] Speaker 00:
Well, a contractual provision, you mean, you're not talking about the... The indemnification.

[00:08:53] Speaker 00:
Okay, but you're not talking about the rule 48D2.

[00:08:58] Speaker 00:
You're talking about

[00:08:59] Speaker 00:
You're saying there was no contractual provision that would have underlay an award of attorney fees, is that right?

[00:09:07] Speaker 02:
I think it's a little bit different.

[00:09:08] Speaker 02:
I would say it this way.

[00:09:09] Speaker 02:
I think that Rule 48D2 says that if everyone agrees prevailing parties just get their fees, then- If both parties ask for it.

[00:09:20] Speaker 00:
And that's what the arbitrators concluded that had occurred.

[00:09:25] Speaker 02:
Respectfully, I think the record is clear.

[00:09:28] Speaker 02:
Not even my co-counsel on the other side says that we requested prevailing party attorneys.

[00:09:33] Speaker 00:
You say prevailing party.

[00:09:35] Speaker 00:
That's almost, it doesn't matter what you say prevailing party.

[00:09:39] Speaker 00:
The bottom line is you both wanted attorney fees.

[00:09:42] Speaker 00:
The net impact of that is whoever wins gets them.

[00:09:46] Speaker 00:
So if you don't use the term prevailing party, you're still asking for attorney fees.

[00:09:50] Speaker 00:
You asked for them because you thought you were going to win.

[00:09:52] Speaker 00:
Martell asked for it because they thought they were going to win.

[00:09:57] Speaker 00:
But that's what they asked for, right?

[00:09:59] Speaker 02:
Respectfully, they certainly asked for them because they thought they were going to win.

[00:10:03] Speaker 02:
We asked for them regardless.

[00:10:04] Speaker 02:
We said that under the indemnification provision, no matter how this goes, we are indemnified for losses, which included attorney's fees.

[00:10:11] Speaker 03:
So let me make sure.

[00:10:12] Speaker 03:
There's kind of two issues here.

[00:10:13] Speaker 03:
I just want to make sure we're understanding your argument.

[00:10:16] Speaker 03:
Your argument is just kind of two issues.

[00:10:17] Speaker 03:
One is the legal question of whether asking for one-sided indemnity fees counts as construction rule 48 or whatever.

[00:10:26] Speaker 03:
So that's the first issue.

[00:10:27] Speaker 03:
And then the second issue is more of a factual issue about what the arbitrator said happened here because as I'm reading this ER 30 that you were deciding to, they are saying aside from that first issue, which I think we can only overturn them on their understanding that 48 covers even identification fees if that was,

[00:10:54] Speaker 03:
so clearly erroneous that, you know, it's a pretty high bar, I think.

[00:10:58] Speaker 03:
Correct me if I'm wrong on that, but put a pin in that for a second.

[00:11:01] Speaker 03:
The second issue is, their answer was, you told the arbitrator, obviously, the appeal, you told them, hey, we didn't ask for, you made the same argument to them that you're making to us.

[00:11:13] Speaker 03:
And they responded, as I read it, Drumm Lodge contends that its request for attorney's fees is limited by its identity counterclaim.

[00:11:20] Speaker 03:
And their respond wasn't just that you're wrong legally on that.

[00:11:23] Speaker 03:
Their response was, however, you didn't condition your answer when we asked you.

[00:11:29] Speaker 03:
You didn't say we're only asking for identity counterclaims.

[00:11:34] Speaker 03:
And so they read you as asking, the arbitrator read you as asking for, unconditionally asking for attorney's fees.

[00:11:43] Speaker 03:
Two questions about that.

[00:11:45] Speaker 03:
One is, do you dispute that they are, whether they're right or not, that you didn't condition?

[00:11:55] Speaker 03:
And then the second question, maybe you don't dispute that.

[00:11:57] Speaker 03:
I mean, yeah, maybe we didn't condition, but it should have been clear that we were referring back to what we had asked for before.

[00:12:03] Speaker 03:
So I'm just trying to figure out where you're sort of disagreement with the arbitrators, because it's very differential to the arbitrators.

[00:12:11] Speaker 03:
And so I'm trying to figure out where your dispute with them is.

[00:12:13] Speaker 02:
It's both, Your Honor.

[00:12:15] Speaker 03:
And we have a declaration.

[00:12:17] Speaker 03:
So you do dispute that you did not condition your request.

[00:12:21] Speaker 03:
Because they say you didn't condition it.

[00:12:23] Speaker 03:
They say Drumm Lodge did not condition or limit its affirmative action to success on its identity counterclaims.

[00:12:30] Speaker 03:
So you'd say, yes, I disagree with them with the arbitrators on that.

[00:12:34] Speaker 03:
We did condition it.

[00:12:36] Speaker 03:
And then you also don't think it would have mattered whether or not you did or didn't.

[00:12:42] Speaker 02:
Correct and there's a declaration in the record where we say that we never agreed that it would be prevailing party attorney's fees and the second point is it is the second point would be a waiver point and this is a reply page nine of our brief.

[00:12:57] Speaker 02:
And let's assume that I didn't, which the record doesn't reflect.

[00:13:03] Speaker 02:
But even if that's true, and we cite Wilson 13 contracts, Section 3928, and Shearing Certified Alloy Products, 2009 Westlaw, 488

[00:13:15] Speaker 02:
So in answer to your question, one, it didn't happen.

[00:13:19] Speaker 02:
That's in the record.

[00:13:20] Speaker 02:
There's a sworn declaration to that effect.

[00:13:23] Speaker 02:
Second, even if it did happen, that is not sufficient.

[00:13:26] Speaker 03:
So the challenge I've got is that, you know, you've got to win on a lot of things, and I know we're running out of time, but you've got to win on a lot of things, because A, you have to be right on your identity doesn't count for construction rule 48.

[00:13:41] Speaker 03:
And I think we have to legally defer

[00:13:45] Speaker 03:
even on legal questions, we have to basically defer to the arbitrator.

[00:13:50] Speaker 03:
But then you also have to be right on a factual question here as to whether or not, because I think you would agree, let me know if you agree, but there was written parts of the record, but my understanding is there was some just oral stuff that wasn't written down.

[00:14:03] Speaker 03:
So you have to convince us that factually they're blatantly wrong, so to speak, that the arbitrator's blatantly wrong.

[00:14:13] Speaker 03:
And am I right?

[00:14:15] Speaker 03:
And so it's quite a hurdle for you to cover.

[00:14:17] Speaker 03:
You have multiple big hurdles to overcome.

[00:14:19] Speaker 03:
And so I'm trying to, am I right in thinking that, or is there some way for you to avoid those hurdles?

[00:14:24] Speaker 02:
I can appreciate that.

[00:14:26] Speaker 02:
I know I'm running out of time.

[00:14:27] Speaker 02:
All I would ask is for the court to respectfully look at the briefing.

[00:14:31] Speaker 02:
I think there is a, I submit to the court

[00:14:35] Speaker 02:
There is an absence of evidence.

[00:14:37] Speaker 02:
And everyone, the arbitrator could have said, we requested prevailing party fees.

[00:14:42] Speaker 02:
They could have said, we requested prevailing party fees.

[00:14:45] Speaker 00:
If this weren't an arbitration, that would be a good argument.

[00:14:48] Speaker 00:
But it is.

[00:14:49] Speaker 00:
Thank you for your time, Your Honor.

[00:14:52] Speaker 02:
Thank you.

[00:14:52] Speaker 02:
If I may say, let me leave the last 30 seconds for a minute.

[00:14:55] Speaker 00:
No, you've got those.

[00:14:56] Speaker 00:
We may give you a tiny bit more, OK?

[00:14:57] Speaker 00:
Thank you very much.

[00:14:59] Speaker 00:
OK.

[00:14:59] Speaker 00:
Very well.

[00:15:01] Speaker 00:
All right.

[00:15:01] Speaker 00:
Did you say get us?

[00:15:03] Speaker 01:
Yes, Your Honor.

[00:15:04] Speaker 01:
Nice job.

[00:15:05] Speaker 01:
Most people aren't able to do that.

[00:15:07] Speaker 00:
Listen, I don't always get it right.

[00:15:08] Speaker 00:
I try.

[00:15:09] Speaker 01:
May it please the court.

[00:15:10] Speaker 01:
My name is Devlin Gattas.

[00:15:11] Speaker 01:
I'm with the Getz Law Firm out of Bozeman, Montana.

[00:15:13] Speaker 01:
I represent Martell Construction out of Bozeman, Montana.

[00:15:16] Speaker 01:
With me is Martell's president, Tony Martell.

[00:15:21] Speaker 01:
I had some introductions that I was going to go through, but I appreciate the focus on Rule 48D from the construction rules.

[00:15:29] Speaker 01:
I also appreciate Council's willingness to concede that 48D was incorporated into the party's contract and the concession that both parties did request attorney's fees.

[00:15:40] Speaker 01:
I understand that Drumm Lodge takes the position that their request for attorney's fees was unilateral and Martel takes the position that its request for attorney's fees was

[00:15:51] Speaker 03:
you can ask why you know i think this uh... asked a short question about california's reciprocity i run across another reason about is that i ran across another case that's a pretty strong argument for your side is it if they asked if they have a identity provision california basically makes both sides of the which kind of weird uh... i'm just makes both sides identify and so was that argument made it all by

[00:16:22] Speaker 03:
Martell's side of this, by you all, I guess, and if it wasn't, is it way before us, or could we sort of assume that the arbitrators may have relied on that rationale?

[00:16:36] Speaker 01:
Candidly, Your Honor, I don't know.

[00:16:38] Speaker 01:
I focused in on Rule 48D because that's what the arbitration panel focused on, and that's what Martell has focused on throughout the case.

[00:16:48] Speaker 03:
But their argument is these don't fall into

[00:16:51] Speaker 03:
Identity fees don't fall into Rule 48 because they're not basically asking for our fees in the way that Rule 48 required.

[00:17:02] Speaker 03:
But if you couple the identity request with California's rule, it essentially turns something like that into a reciprocity provision.

[00:17:13] Speaker 03:
There is case law in California about how that just creates, and we had an old case

[00:17:21] Speaker 01:
that i recently overturned in an opinion uh... it which is there will be with case which basically said that so i just wonder why you guys didn't rely on the word we may have it might be in the briefing below at the arbitration level okay uh... i just don't have an answer not sure okay those those briefing is in the record but i do want to focus on your question because

[00:17:42] Speaker 01:
The term prevailing party keeps getting thrown around here, and if we actually read Rule 48D2, it states, the award of the arbitrator may include an award of fees if all parties have requested such an award, or

[00:18:00] Speaker 01:
if it's authorized by the law or the contract.

[00:18:02] Speaker 01:
There is nothing in that section that says prevailing party fees.

[00:18:07] Speaker 01:
There is an admission from Drumm Lodge that it requested fees.

[00:18:11] Speaker 01:
I disagree with the contention that it was limited, as did the panel in its factual findings.

[00:18:18] Speaker 01:
Martel requested fees.

[00:18:20] Speaker 01:
under my reading of Rule 48D, that's enough to engage the rule such that the panel may, in its discretion, award fees.

[00:18:30] Speaker 01:
It doesn't even have to be permitting parties fees.

[00:18:31] Speaker 03:
You know, the belt suspenders argument, even if they were only asking for identity fees under the plain language of Rule 48, you win.

[00:18:39] Speaker 03:
It doesn't matter.

[00:18:40] Speaker 03:
Plus, you're saying they didn't just, you agree with the arbitration panel that they didn't so limit, at least in certain times, orally, they didn't so limit.

[00:18:49] Speaker 01:
The record is from the very beginning counsel cited to the statement of record.

[00:18:56] Speaker 01:
that early on in the case, before Mr. Meyer was involved, Drum Lodge did limit its request to the indemnification provision.

[00:19:04] Speaker 01:
As we move through the proceeding, we get to the end, and the panel specifically looked at both sides and said, are you requesting fees?

[00:19:11] Speaker 01:
Answer, yes.

[00:19:12] Speaker 01:
Are you requesting fees?

[00:19:13] Speaker 01:
Answer, yes.

[00:19:14] Speaker 01:
Hence, we have the finding that Council for Martel and Drum Lodge each answered affirmatively.

[00:19:21] Speaker 01:
And I agree with your honor, that is a procedural fact finding by the panel that this court is loathe to overturn without some evidence that it was absolutely an incorrect factual finding.

[00:19:37] Speaker 00:
Is it fair to say that we really don't need to focus on California Civil Code 1778 at all?

[00:19:45] Speaker 00:
Because they didn't rely on that.

[00:19:46] Speaker 00:
They relied on the rule 48D2, asking both parties about it.

[00:19:51] Speaker 00:
And as was discussed, this is a factual finding.

[00:19:55] Speaker 00:
They relied upon it.

[00:19:58] Speaker 00:
I'm a California lawyer, and I'm very familiar with 1717A.

[00:20:03] Speaker 00:
I don't see that as anything to do with it.

[00:20:04] Speaker 00:
You could, I suppose, splice it in, but you don't need it.

[00:20:07] Speaker 01:
I would agree, Your Honor.

[00:20:08] Speaker 01:
I'm not saying the panel disregarded that statute.

[00:20:11] Speaker 01:
I'm a Montana attorney and not familiar with the California Code, but I do know that the panel relied on 48D2, and I do know that Martell made the request for recovery of fees, and as so did Drummond.

[00:20:26] Speaker 00:
And that, from your perspective, that's really all it takes.

[00:20:30] Speaker 00:
That is all it takes.

[00:20:31] Speaker 00:
You got that rule.

[00:20:32] Speaker 00:
You asked for it.

[00:20:33] Speaker 00:
They asked for it.

[00:20:34] Speaker 00:
You don't need to use the term prevailing.

[00:20:36] Speaker 00:
Both parties wanted it.

[00:20:37] Speaker 00:
They both thought they were going to win.

[00:20:39] Speaker 00:
One did.

[00:20:39] Speaker 00:
One got the attorney fees.

[00:20:41] Speaker 00:
Correct.

[00:20:41] Speaker 00:
Can I switch to the other subject just for a minute?

[00:20:44] Speaker 00:
Yes.

[00:20:45] Speaker 00:
Your learned opposing counsel has made the interesting argument that because, I don't know who exactly said, was you, said to the arbitrators, you know, we don't have very good arbitrators up here.

[00:20:58] Speaker 00:
Would you all be interested in doing, I'm just, you know, not directly.

[00:21:03] Speaker 00:
But basically, would you ever be interested in coming up here?

[00:21:06] Speaker 00:
He takes the position that that is, in effect, a basis for overturning the decision here.

[00:21:14] Speaker 00:
What's your response to that?

[00:21:16] Speaker 01:
Sure.

[00:21:16] Speaker 01:
Your Honor, I want to make sure the record is clear.

[00:21:20] Speaker 01:
There are qualified arbitrators in Montana.

[00:21:24] Speaker 00:
I heard some of them were really upset with what you said.

[00:21:27] Speaker 01:
Our arbitrators are slowly retiring in Montana, and that's where the issue is.

[00:21:33] Speaker 01:
So we are light on, especially in the construction industry, arbitrators in Montana.

[00:21:40] Speaker 01:
During one of the breaks, I did say, can attorneys licensed in California arbitrate cases in Montana?

[00:21:46] Speaker 01:
And the answer was yes.

[00:21:48] Speaker 01:
In fact, we've arbitrated in other states before.

[00:21:51] Speaker 01:
And then the conversation switched to, we love Montana.

[00:21:54] Speaker 01:
It's beautiful.

[00:21:54] Speaker 01:
We mountain bike there in the whitefish.

[00:21:57] Speaker 00:
And I don't know whether it was this distinguished gentleman or somebody else, but.

[00:22:01] Speaker 00:
The attorney for Drum Lodge was there and heard this, right?

[00:22:05] Speaker 01:
Mr. Meyer was not in the room, but one of his associates was in the room while that conversation was occurring.

[00:22:11] Speaker 01:
Yes, Your Honor.

[00:22:12] Speaker 00:
No objection was made at the time saying, wait a minute, you can't say this.

[00:22:17] Speaker 01:
No objection was made until eight months later after the final award was entered.

[00:22:23] Speaker 01:
And the very first time that we saw the objection was when the petition to vacate was filed with the district court.

[00:22:31] Speaker 01:
That was also the first time that we saw a copy of the unofficial transcript.

[00:22:36] Speaker 01:
So my response is the point, Your Honor, to Your Honor's case in Dergabah.

[00:22:43] Speaker 01:
We have not only evidence here of constructive knowledge, but we have actual knowledge by counsel of this

[00:22:52] Speaker 01:
purported ex parte communication.

[00:22:55] Speaker 01:
And it was drum lodges duty at that point in time, not only under Durga Ma, but also under construction rule 42 to raise the objection timely or have it be deemed waived.

[00:23:12] Speaker 01:
And so my response to the argument is that waiting after the preliminary award, after the final award, and not raising the issue until

[00:23:22] Speaker 00:
The matter is Pending before the district court is just untimely and therefore it's waived Is there any case law that you're aware of that would support their position under the circumstances the the?

[00:23:35] Speaker 01:
Best case I have been able to find for drum lodge is the Valrose case out of the district of Hawaii I don't think that case applies here because in that example your honor I

[00:23:49] Speaker 01:
There was a communication between counsel and an arbitrator before subject arbitration was even being considered.

[00:23:59] Speaker 01:
And they were talking about hiring that arbitrator.

[00:24:02] Speaker 01:
The arbitrator was hired for the pending case, and then during the pending case was subsequently hired for the unrelated case to arbitrate.

[00:24:12] Speaker 01:
The court eventually vacated the arbitration because it held that the arbitrator had a duty after being retained in the unrelated case to disclose that, and the arbitrator failed to do so.

[00:24:24] Speaker 01:
That's the closest case I've been able to find, but this case is just in opposite.

[00:24:30] Speaker 01:
We did not hire any arbitrators.

[00:24:32] Speaker 01:
In fact, I haven't spoken to the arbitrator since the final award.

[00:24:36] Speaker 00:
uh... i i wrote a case uh... called uh... bald monster but it was uh... jams case yes for the disclosed ownership and i'm pretty familiar with this area i don't see anything like that here it seemed like a very different situation uh... there was no statement boy if you want to come up here we'll really take care of you you know that kind of thing or an ex-party communication

[00:25:02] Speaker 01:
I agree, Your Honor.

[00:25:03] Speaker 01:
I did go through the Monster Energy case.

[00:25:05] Speaker 01:
In fact, that's the case that Drum Lodge primarily relies upon as its basis.

[00:25:10] Speaker 01:
And I can understand the reason for overturning the arbitration in that circumstance.

[00:25:15] Speaker 04:
Excellent.

[00:25:17] Speaker 01:
Because it wasn't learned until the actual district court action that there had been a conflict at that point in time.

[00:25:26] Speaker 01:
With that, Your Honor, I have more time.

[00:25:27] Speaker 01:
I'm happy to answer questions.

[00:25:29] Speaker 01:
Any other questions by my colleague?

[00:25:31] Speaker 00:
Great.

[00:25:31] Speaker 00:
I think not.

[00:25:31] Speaker 00:
Very well.

[00:25:32] Speaker 00:
Thank you.

[00:25:33] Speaker 00:
All right.

[00:25:34] Speaker 00:
Mr. Meyer, you don't have much time left, but we'll give you a couple of minutes if you need it, if you want it.

[00:25:40] Speaker 02:
I'll take the 20 seconds, Your Honor.

[00:25:41] Speaker 00:
Okay, that's fine.

[00:25:43] Speaker 02:
The parties, they signed a contract, okay?

[00:25:47] Speaker 02:
It had an indemnity clause.

[00:25:50] Speaker 02:
It gave my client the right to indemnity.

[00:25:54] Speaker 02:
We're now all agreed Rule 48 is the only rule that is being considered here.

[00:26:00] Speaker 02:
My client had a right to indemnity under a contractually agreed clause.

[00:26:06] Speaker 02:
As I'm hearing it now, or if the outcome is that the district court's ruling is upheld, my client is being penalized for exercising

[00:26:19] Speaker 02:
or at least seeking to exercise its right to indemnity because by seeking to... Wait a minute.

[00:26:26] Speaker 00:
You're basically harking back to 1717 now.

[00:26:28] Speaker 00:
1717 is not an issue.

[00:26:31] Speaker 00:
I know, but I'm saying if you're saying that you're hanging your hat on indemnity and you had a right to indemnity then under California law, they had the right as well.

[00:26:41] Speaker 00:
If you lose the case, they win on that issue, right?

[00:26:44] Speaker 02:
No, that issue was not raised before the arbitration.

[00:26:48] Speaker 00:
I understand, but you're not raising it.

[00:26:51] Speaker 00:
You can't have it one way.

[00:26:52] Speaker 00:
I mean, either you're relying on indemnity or you're not relying on indemnity.

[00:26:57] Speaker 00:
They're relying on rule 48D2.

[00:27:00] Speaker 00:
They say you said it was OK.

[00:27:03] Speaker 00:
Both parties, you disagree with the factual finding.

[00:27:05] Speaker 00:
But if you're saying, well, wait a minute, you can't rely on that.

[00:27:08] Speaker 00:
You've got to rely on the contract.

[00:27:09] Speaker 00:
If you're doing that, then you're back in 1717 land.

[00:27:13] Speaker 02:
respectfully I think and then I'll see my time I apologize for taking more time respectfully I think all my client

[00:27:20] Speaker 02:
has ever sought to do in this case, and I think the record reflects it, I think the written record reflects it, I think the oral record reflects it, I think the writings by the panel reflect it, I think the opposition brief by Martel reflects it, is that at all times the only thing we sought to do.

[00:27:39] Speaker 03:
So I understand what you're going to say.

[00:27:40] Speaker 03:
We know what you're going to say, but no, no, this is kind of important because if

[00:27:45] Speaker 03:
You know, what you're relying on on the 1717 is that they never brought it up.

[00:27:50] Speaker 03:
But if 1717 is this California background rule that makes indemnity provisions reciprocal, it's not clear to me that they needed to bring it up.

[00:28:00] Speaker 03:
You know, because the arbitration panel, their rationale on that ER 30 is you didn't bring up, and it's a little bit of a harsh rule, but I'm not sure whether we still have to, I mean, we have to defer to harsh rules by, you know, harsh rulings by arbitration panels.

[00:28:14] Speaker 03:
It's a little bit harsh to say, well, when you said you were asking for attorney's fees, you didn't orally, you didn't explicitly say, we're only asking for identity.

[00:28:22] Speaker 03:
And that seems a little bit harsh.

[00:28:24] Speaker 03:
I get your position on that.

[00:28:26] Speaker 03:
But if you couple that with the California reciprocity, the background California reciprocity rule, then

[00:28:36] Speaker 03:
It doesn't seem quite as harsh because you just asking for identity is essentially asking for attorney's fees against that backdrop.

[00:28:42] Speaker 03:
You see what I'm saying?

[00:28:43] Speaker 03:
You're relying heavily on them having waived it, but since it's a reciprocity rule that sits there in the background, it's not clear to me that you didn't need to raise it.

[00:28:53] Speaker 02:
The last thing I'll say is why I respectfully disagree is because we did raise it in writing repeatedly in our

[00:28:59] Speaker 02:
in our briefing.

[00:29:00] Speaker 03:
Just by asking for it only as identity, you're saying.

[00:29:02] Speaker 03:
Yes, Your Honor.

[00:29:03] Speaker 00:
Thank you.

[00:29:03] Speaker 00:
Thanks to both gentlemen for your argument.

[00:29:05] Speaker 00:
Appreciate it.

[00:29:06] Speaker 00:
And it's very interesting about how you got your last name.

[00:29:09] Speaker 02:
Yes.

[00:29:10] Speaker 00:
Thank you.

[00:29:10] Speaker 00:
Thank you both for your argument.

[00:29:11] Speaker 00:
The case just argued is submitted and the court stands adjourned for the day.

[00:29:17] Speaker 04:
All rise.

[00:29:23] Speaker 04:
This court for this session stands adjourned.