Detroit Carpenters Fringe Benefit Funds v. Andrus Acoustical, Inc. et al

Filing 152

OPINION AND ORDER denying 114 MOTION TO AMEND DAMAGES FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT, MOTION FOR NEW TRIAL, MOTION FOR RELIEF FROM JUDGMENT. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRUSTEES OF THE DETROIT
CARPENTERS FRINGE BENEFIT
FUNDS,

Case No. 11-cv-14656

Plaintiffs,

Paul D. Borman
United States District Judge

v.
ANDRUS ACOUSTICAL, INC.,
a Michigan Corporation, STERLING
MILLWORK, INC., a Michigan
Corporation, ALAN ANDRUS, an
individual, and MARK BOLITHO,
an individual, jointly and severally,
Defendants.
_________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO AMEND
DAMAGES FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND JUDGMENT, MOTION FOR NEW TRIAL,
MOTION FOR RELIEF FROM JUDGMENT (ECF NO. 114)
Before the Court is Defendants’ Motion to Amend Damages and Findings of
Fact and Conclusion of Law and Judgment, Motion for New Trial, Motion for Relief
From Judgment. (ECF No. 114.) The Defendants specifically challenge the Court’s
findings and conclusions with respect to damages awarded on two construction jobs
on which the Court has found that Defendants Andrus Acoustical, Inc. (“Andrus”) and
Sterling Millwork, Inc. (“Sterling”) performed covered carpentry work through an
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alter ego operation. Plaintiffs filed a Response to the motion (ECF No. 150) and
Defendants did not file a Reply.
The Court has concluded that oral argument is not necessary and will decide the
matter on the parties’ written submissions. E.D. Mich. L. R. 7.1(f)(2). For the reasons
that follow, the Court DENIES the motion.
I.

BACKGROUND
The history and background of this litigation is set forth in numerous prior

Opinions and Orders of this Court. See ECF No. 24 (2/23/12 Opinion and Order
Denying Motion to Dismiss); ECF No. 65 (4/30/14 Opinion and Order Denying
Defendants’ Motions For Summary Judgment); ECF No. 87 (3/22/16 Amended
Findings of Fact and Conclusions of Law Following Bench Trial on Alter Ego
Liability); ECF No. 111 (11/27/17 Findings of Fact and Conclusions of Law
Following Bench Trial on Damages).
This Opinion and Order assumes familiarity with this lengthy history, but in
summary this Court has found that Andrus (a Union entity) and Sterling (a non-Union
entity) performed covered carpentry work through an alter ego operation on eight
construction projects between the years 2008 - 2011, and has awarded the Plaintiff
Funds damages for unpaid fringe benefit contributions in the amount of $1,080,543.38
based upon that alter ego finding. Defendants now challenge the Court’s findings and
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conclusions on damages with respect to two of those projects.
II.

STANDARDS OF REVIEW
Defendants move the Court pursuant to three different procedural rules: Fed.

R. Civ. P. 52(a)(5) and (b), Fed. R. Civ. P. 59(a), and Fed. R. Civ. P. 60(b). Rule
52(a)(5) provides, with respect to the Court’s findings of fact and conclusions of law
following a non-jury trial, that: “A party may later question the sufficiency of the
evidence supporting the findings, whether or not the party requested the findings,
objected to them, moved to amend them, or moved for partial findings.” Rule 52(b)
provides that: “On a party’s motion filed no later than 28 days after entry of judgment,
the court may amend its findings – or make additional findings – and may amend the
judgment accordingly. The motion may accompany a motion for a new trial under
Rule 59.” Fed. R. Civ. P. 52(b). “Under Rule 52(b), a court may amend its findings
and its judgment upon a motion by a party made not later than ten [now 28] days after
the entry of judgment. Rule 52 is not intended to serve as a vehicle for a rehearing.”
Laborers Pension Trust Fund – Detroit and Vicinity v. Interior Exterior Specialists
Construction Grp., Inc., No. 04-74514, 2008 WL 11399707, at *1 (E.D. Mich. Oct.
20, 2008) (internal quotation marks and citation omitted) (alteration added). “This
Court must apprise prospective appellate courts of the basis of the trial court’s
decision, and Rule 52(b) gives parties an opportunity for expending the findings of
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fact.” Id. (internal quotation marks and citation omitted). This “Court is only
required to have made herein findings sufficient to indicate the factual basis for the
ultimate conclusion.” Id. (internal quotation marks and citation omitted).
Rule 59 provides in relevant part that “[t]he court may, on motion, grant a new
trial on all or some of the issues – and to any party . . . (B) after a nonjury trial, for any
reason which a rehearing has heretofore been granted in a suit in equity in federal
court.” Fed. R. Civ. P. 59(a)(1)(B). Such a motion “must be filed no later than 28
days after the entry of judgment.” Fed. R. Civ. P. 59(b). Rule 59(e) provides that a
“motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment.” “A district court may grant a Rule 59(e) motion to alter or
amend judgment only if there is: ‘(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice.’” Henderson v. Walled Lake Consolidated Schools, 469 F.3d 479,
496 (6th Cir. 2006) (citing Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th
Cir.2005).
Rule 60 provides that: “On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding” for any of a
number of listed reasons including “mistake, inadvertence, surprise, or excusable
neglect,” or “fraud . . . or any other reason that justifies relief.” Fed. R. Civ. P.
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59(b)(1-6). A motion filed under Rule 60 “does not affect the judgment’s finality or
suspend its operation.” Fed. R. Civ. P. 60(c)(2).
III.

ANALYSIS
As is clear from their prayer for relief, Defendants challenge the sufficiency of

the evidence in support of the Court’s findings and conclusions as to these two jobs
and ask the Court to amend its findings of fact and amend its judgment accordingly:
“Defendants respectfully ask this Court to amend its findings and conclusions and to
reduce the Judgment by $470,665.81, which is comprised of $91,842.95 for carpentry,
$35,393.92 for carpentry millwork, $171,714.47 in interest, and $171,714.47 in
penalty interest.” (ECF No. 114, Defs.’ Mot. at 6, PgID 2939.)
The Court finds no basis to amend its findings or its judgment and is satisfied
that it has articulated sufficient findings to indicate the factual basis for its findings
and conclusions, and reiterates in part as follows:
(1) Ocean Prime: Defendants assert that “the Court’s findings on the Ocean
Prime job are not supported by evidence connecting this job with Andrus Acoustical.”
(Defs.’ Mot. 3.) The Court’s findings are supported by ample evidence connecting
this job to Andrus Acoustical including, as set forth in ¶¶ 9(a-f) of its Findings of Fact
and Conclusions of Law on Damages, the following: 1) Sterling’s contract for the
Ocean Prime job required union labor for categories of work including millwork (¶
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9(a)); 2) the Court found incredible Mr. Bolitho’s testimony that Sterling has never
had a contract requiring union labor for millwork (¶9(b)); 3) Sarah Johnston’s notes
directed the payment of “mill stuff” at “union rates;” (¶ 9(b); 4) multiple employees
testified and submitted time sheets designating their work at Ocean Prime as “Union”
(¶ 9(d)); 5) Sarah Johnston and David Milka’s testified that “union” on an employee’s
time sheet always meant “Andrus” (¶ 9(c)).
The Court specifically found that this evidence was sufficient to bring the
Ocean Prime job within the ambit of the Court’s alter ego holding despite the fact that
Ocean Prime was not among the jobs listed on Plaintiff’s Trial Exhibit 154, which
listed the jobs on which the Court based its initial alter ego holding in the liability
phase of the trial. (¶ 9(e)). The evidence at trial established that “Union” always
meant “Andrus” and multiple employee time sheets listed their work specifically for
Ocean Prime as “Union.” Alan Andrus testified at trial that it was possible that a
Sterling/Andrus employee could have worked on the Ocean Prime job and he would
not have known about it, explaining how it was possible that the Ocean Prime job did
not appear on Exhibit 154. (¶ 9(f)). Defendants offered no credible testimony or
evidence at trial to rebut this evidence and the Court’s findings and conclusions on the
Ocean Prime job are supported by ample evidence.

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(2) Plum Market West Bloomfield: Defendants assert that the “the Court’s
decision on the Plum Market West Bloomfield job is not supported by substantial
evidence.” (Defs.’ Mot. 5.) The Court’s findings are supported by ample evidence
establishing that all of the work on the Plum Market West Bloomfield job was
required to be performed with Union labor from January, 2009, forward through the
completion of the job. The Court did credit Mr. Katrivesis’s testimony and based on
his testimony the Court limited the damages claimed on the Plum Market West
Bloomfield job to work done in the years 2009 and 2010. The Court also credited Mr.
Katrivesis’s testimony, given in direct response to clarifying questioning by the Court,
that after the meeting with Union representatives sometime in late December 2008 or
early January 2009, “all carpentry work after the meeting and agreement had to be
union labor.” (Damages Trial Tr. 22:7-17.) Defense counsel then elicited Mr.
Katravesis’s recollection of the scope of work left to do at that point, which did
nothing to defeat the testimony that all of the work thereafter had to be performed
with Union labor.
The Court credited Mr. Katravesis’s direct statement to the Court that after the
meeting with the Union in late December or early January 2009, all the remaining
work on the Plum Market West Bloomfield job had to be Union labor. Therefore, the
Plaintiffs were entitled to damages on all of the carpentry work that was performed
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on the Plum Market West Bloomfield Job from January 1, 2009 forward, and that is
what the Court awarded. This evidence strongly supported the Court’s findings and
conclusion that the Plaintiffs were entitled to damages on all work performed on the
Plum Market West Bloomfield job in 2009 and 2010.
IV.

CONCLUSION
Defendants proffer no evidence or even argument of “mistake, inadvertence,

surprise, excusable neglect, or fraud” such as would justify relief under Rule 60. Nor
is there any claim of “a clear error of law . . . newly discovered evidence . . . [or] an
intervening change in controlling law” as would justify relief under Rule 59(e). Nor
do Defendants present facts that would require the Court to act “to prevent manifest
injustice.” Defendants seek an amendment to the Court’s findings and conclusions
under Rule 52(b), but “[t]he purpose of Rule 52(b) is to allow a court to correct
manifest errors of law or fact, or in limited circumstances, to present newly discovered
evidence, but not to relitigate old issues, advance new theories, or to secure a
rehearing on the merits.” Huizinga v. Genzink Steel Supply and Welding Co., No. 10223, 2013 WL 12249781, at *1 (W.D. Mich. Oct. 11, 2013). “Under Rule 52(b), the
moving party has the burden of showing that ‘a manifest error in the court’s findings
of fact or conclusions of law’ has been made.” Trustees of Painters Union Deposit
Fund v. Harrison Const. Co., No. 03-73716, 2006 WL 374566, at *1 (E.D. Mich. Feb.
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16, 2006) (citing 9 Moore’s Federal Practice § 52.60[4][a]).
No such showing has been made here. Accordingly, the Defendants’ Motion
is DENIED.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 27, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on April
27, 2018.

s/Deborah Tofil
Case Manager

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