                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0318n.06

                                          No. 14-5444                                 FILED
                                                                                 May 01, 2015
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

CROSSVILLE MEDICAL ONCOLOGY, P.C.,                      )
                                                        )
       Plaintiffs-Appellees, et al.,                    )
                                                        )
                 v.                                     )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
GLENWOOD SYSTEMS, LLC,                                  )       COURT FOR THE MIDDLE
                                                        )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE:        KEITH, COOK, and DONALD, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. This appeal stems from a litany of litigation

between the parties spanning over more than a decade, and is our third review. Today we decide

whether the parties’ contract allows a district court to award additional attorneys’ fees in an

arbitration confirmation. The prevailing party in the arbitration proceedings, Glenwood Systems,

LLC d/b/a Glenwood Systems, Inc. (“Glenwood”), filed a motion for attorneys’ fees,

enhancement of attorneys’ fees and prejudgment interest, but was denied by the district court.

Glenwood argued that the arbitration agreement provided for attorneys’ fees and due to the

court’s prior enforcement, it had the authority to issue additional fees. Alternatively, Glenwood

asserted that its adversary’s constant evasion of the arbitrator’s award constitutes bad faith and

warrants additional fees. The district court held that under the Federal Arbitration Act (“FAA”)

as interpreted by Menke v. Monchecourt, 17 F.3d 1007 (7th Cir. 1994), it did not have
No. 14-5444
Crossville v. Glenwood

jurisdiction to award attorneys’ fees associated with confirmation of an arbitration award. The

district court only confirmed the award as issued by the arbitrator: $221,147.45, with $16,238.75

for attorney’s fees and costs.     The district court did not state why it declined to order

enhancement of attorneys’ fees and prejudgment interest. Because we find that the parties’

contract does not authorize a court to award attorneys’ fees beyond those issued by an arbitrator,

it was not error to deny Glenwood’s request. We AFFIRM the district court’s judgment denying

Glenwood’s motion for attorneys’ fees and fee enhancement.             However, the denial of

prejudgment interest is REVERSED and REMANDED for findings of fact.

    I.      BACKGROUND

         Crossville Medical Oncology (“Crossville”), through its sole shareholder, Dr. David C.

Tabor, initially brought suit against Glenwood in September 2004, alleging that Glenwood

breached a Billing Service Agreement (the “Agreement”) between the parties. The claim was

dismissed after the district court determined that there was an enforceable arbitration clause in

the Agreement. We affirmed. Crossville Med. Oncology, P.C. v. Glenwood Sys., LLC, 310 F.

App’x 858 (6th Cir. 2009).

         In March 2006, Crossville filed an arbitration demand, and Glenwood filed a

counterclaim against Crossville and Dr. Tabor. Over objection that Dr. Tabor consented to

arbitration, the arbitrator issued an award against Dr. Tabor for $221,147.45 (“Award”), with an

additional $16,238.75 for attorneys’ fees. The arbitrator found that Dr. Tabor was liable because

he signed of the agreement in his individual capacity. The arbitrator further held that Dr. Tabor

breached the Agreement.

         Glenwood sought to confirm the Award in federal district court. Crossville objected to

the confirmation, arguing that Glenwood’s motion to enforce the award against Dr. Tabor was



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Crossville v. Glenwood

improper because Dr. Tabor had not consented to the arbitration. The district court granted

Glenwood’s motion, and Crossville appealed. We reversed the district court’s decision and

remanded the case. Crossville Med. Oncology, P.C. v. Glenwood Sys., LLC, 485 F. App’x 821

(6th Cir. 2012). We held that the FAA precluded judicial review of those whom were bound by

the Agreement.       Id.   We remanded, specifically instructing the district court to determine

whether Dr. Tabor was bound by the Agreement. A bench trial was held on September 10, 2013,

and the district court found that Dr. Tabor was personally bound by the Agreement. The district

court entered a judgment confirming the Award against Dr. Tabor. Dr. Tabor filed an appeal, but

subsequently withdrew it.

          After the trial, Glenwood filed a motion for attorneys’ fees and prejudgment interest.

Glenwood sought recovery of attorneys’ fees incurred for the various litigation involved after

arbitration. Dr. Tabor responded and asserted that the district court lacked authority under the

FAA to award attorneys’ fees associated with confirmation of an arbitration award. To support

his position Dr. Tabor cited Menke.

          On March 11, 2014, the district court entered a handwritten order denying Glenwood’s

motion for attorneys’ fees and prejudgment interest. The ruling stated:

                 Based upon Menke v. Monchecourt, 17 F.3d 1007 (7th Cir. 1994)
                 this motion is DENIED as beyond the authority of the court. The
                 Huntsville Golf decision cited by Plaintiff is inapplicable as here
                 the Defendant Tabor was a party to the arbitration, but most of the
                 Defendants in Huntsville Golf were not parties to the arbitration
                 proceeding.

Order, PageID #: 1407, Jan. 31, 2014, ECF No. 169. Glenwood filed this appeal.

    II.      STANDARD OF REVIEW

          Generally, a district court’s denial of attorneys’ fees is reviewed for abuse of discretion.

Cleveland v. Ibrahim, 121 F. App’x 88, 89 (6th Cir. 2005). However, when the court’s denial of

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Crossville v. Glenwood

attorneys’ fees is based on an underlying legal conclusion, we review denial de novo. See

Edwards v. United Parcel Serv., Inc., 99 F. App’x 658, 660 (6th Cir. 2004). Thus, because the

district court determined that it lacked the authority to award Glenwood’s attorneys’ fees, we

review the district court’s decision de novo. See id.

    III.        DISCUSSION

           Glenwood appeals the district court’s judgment denying its motion for post-arbitration

attorneys’ fees and fee enhancement. Glenwood first asserts that paragraph 10 of the Agreement

provides for the recovery of attorneys’ fees; Glenwood argues that because the district court

proceedings were not to simply confirm the award, it can enforce the Agreement. Glenwood

also contends that, in the alternative, it is entitled to attorneys’ fees “based on Dr. Tabor’s

repeated acts of bad faith in avoiding confirmation of the Award against him personally.”

Appellant’s Br. 34. In addition to appealing the district court’s judgment denying its motion for

attorneys’ fees, Glenwood also appeals the district court’s judgment denying prejudgment

interest. We address each of these arguments in turn.

           A.    Attorneys’ Fees

                  1.   Arbitration Agreement Provision

           The parties dispute whether a court may award attorneys’ fees to a party for post-

arbitration litigation. Citing Menke, the district court held that it did not have jurisdiction to

award attorneys’ fees for post-arbitration litigation, and we agree.

           Generally, under the “American” rule, litigants pay their own attorneys’ fees. Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 263-64 (1975). The FAA neither

contemplates nor precludes an award of attorneys’ fees. See Menke, 17 F.3d at 1009. In Menke

the Seventh Circuit held that “there is nothing in the Federal Arbitration Act which provides



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Crossville v. Glenwood

attorneys’ fees to a party who is successful in seeking confirmation of an arbitration award in

federal courts.” Id. The Court further stated that a court may only award attorneys’ fees if it is

authorized by statute, or by the parties’ contractual agreement.            Id. (“Absent statutory

authorization or contractual agreement between the parties, the prevailing American rule is that

each party in federal litigation pays his own attorneys’ fees.”).

        Crossville argues that this case presents no exception; the parties are bound by the

American rule and Menke, and thus are required to pay their own attorneys’ fees. Crossville,

however, concedes that the Agreement anticipates attorneys’ fees, but only in the limited context

of fees associated with the arbitration proceedings, not fees to enforce the Award. Glenwood

agrees that the FAA does not provide recovery for attorneys’ fees, See Appellant Br. 24, but

argues that the parties’ agreement warrants departing from the American rule, and rendering

Menke inapplicable. Specifically, Glenwood asserts that the Agreement entitles it to all fees

associated with enforcing its Award. Glenwood contends that paragraph 10 of the Agreement

provides for an award of attorneys’ fees to the prevailing party not just at arbitration, but “at any

stage of litigation between the parties.”

        Paragraph 10 of the Agreement states:

                Miscellaneous: This Agreement shall be governed by laws of the
                State of Connecticut. Any dispute arising out of or in connection
                with this Agreement, if not otherwise resolved, shall be determined
                by arbitration in New Haven County, Connecticut, in accordance
                with the Rules of American Arbitration Association and it is the
                express desire of the parties that the prevailing party be awarded
                costs and attorneys’ fees and the award be entered as a judgment in
                any jurisdiction in which the non-prevailing party does business.

Billing Service Agreement, Case 2:10-cv-00061, Document 1-2 PageID #:37.




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Crossville v. Glenwood

        Contract interpretation requires us to apply state substantive law and determine the

parties’ intent from “the plain language of the contract.”1 Royal Ins. Co. of Am. v. Orient

Overseas Container Line Ltd., 525 F.3d 409, 421 (6th Cir. 2008). Thus, “[w]e accord the

language employed in the contract a rational construction based on its common, natural and

ordinary meaning and usage as applied to the subject matter of the contract.” Cantonbury

Heights Condominium Ass’n, Inc. v. Local Land Dev., LLC, 873 A.2d 898, 904 (Conn. 2005).

“Where the language is unambiguous, we must give the contract effect according to its terms.”

Id. “Moreover, in construing contracts, we give effect to all the language included therein, as

‘the law of contract interpretation . . . militates against interpreting a contract in a way that

renders a provision superfluous.’” Ramirez v. Health Net of Ne., Inc., 938 A.2d 576, 586 (Conn.

2008) (quoting Wesley v. Schaller Subaru, Inc., 893 A.2d 389,402 (Conn. 2006)).

        A rational construction of the Agreement compels the conclusion that the Agreement is

not as broad as Glenwood asserts. The Agreement here only authorizes an arbitrator to award

attorneys’ fees and costs during arbitration, and authorizes the district court to enter the award as

a judgment.      The words “award” and “entered as a judgment” support our conclusion.

Arbitration proceedings, and subsequent confirmation, operate such that arbitrators make an

“award,” and judges “enter,” as “judgments,” arbitration “awards.” Thus, applying the rules of

contract interpretation, the Agreement does not anticipate an award of post-arbitration attorneys’

fees for subsequent proceedings and litigation.

        Glenwood cites Sailfrog Software, Inc. v. Theonramp Group., Inc., No. 97-7014, 1998

WL 30100 (N.D. Cal. Jan. 20, 1998), as support for its argument that the Agreement provision

1
  The Agreement provides that Connecticut law governs, but the Agreement may have been
entered into in Tennessee. We do not determine whether the choice-of-law provision is valid,
although neither party disputes its validity because there is no meaningful distinction under
either state’s substantive law as conceded by the parties.
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No. 14-5444
Crossville v. Glenwood

authorizes an additional award of attorneys’ fees.           However, Sailfrog does not support

Glenwood’s position. The Sailfrog court interpreted an arbitration agreement and concluded that

the parties’ contract anticipated the payment of costs incurred to confirm an arbitration award.

Id. at *5. The Sailfrog arbitration agreement stated:

                [i]f any action at law or in equity is brought for breach of or is
                necessary to enforce the terms of this agreement, the prevailing
                party shall be entitled to reasonable attorney’s fees, costs, and
                necessary disbursements in addition to any other release to which
                this party may be entitled.

Id. The district court held the clause was broad, incorporating “any action at law or in equity.”

It reasoned that “such clauses support the awarding of court costs and reasonable attorneys’ fees

to the successful party both for the arbitration itself and the confirmation proceeding.” Id.

        While parties are free to contract for the payment of attorney’s fees, see Menke, 17 F.3d

at 1009, the provision in dispute here is not as broad as Sailfrog’s. Here, there is language that

limits the award of attorneys’ fees. Instead, of the all-encompassing entitlement to attorneys’

fees for “any action at law or in equity[,]” the provision here states that “the award be entered as

a judgment.” As stated above, judges enter judgments.           There is no language that can be

interpreted to imply that a court may do more than enter the judgment. Additionally, the

provision in Sailfrog allows attorneys’ fees for an action “necessary to enforce the terms of this

agreement.” Sailfrog, 1998 WL 30100, at *5. These words contemplate an award of attorneys’

fees for actions outside the scope of arbitration because additional litigation could be necessary

to enforce the agreement. No similar wording appears in paragraph 10. Thus, because the

provision in Sailfrog is broader than the provision here, we reject Glenwood’s argument that

Sailfrog supports its entitlement to post-arbitration attorneys’ fees.




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No. 14-5444
Crossville v. Glenwood

        We must note that our sister circuit in Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578

(5th Cir. 1986), upheld the district court’s award of attorneys’ fees in a post-arbitration

proceeding. Id. at 578. However, our holding today does not conflict with the Fifth Circuit’s

holding in Schlobohm; it is supported by it. In Schlobohm, Pepperidge Farm argued that the

district court had no power to award Schlobohm attorneys’ fees because under the FAA, the

court sat solely to confirm the arbitration award.       Id. at 580.    The Fifth Circuit rejected

Pepperidge Farm’s argument, holding that because the parties’ agreement did not state that “any

dispute arising from the contract” would be submitted to arbitration, a court was free to consider

whether an award of post-arbitration fees was warranted. Id. at 581. The Fifth Circuit further

reasoned that because there was an arbitration proceeding, which did not address attorneys’ fees,

a court would not be precluded from deciding whether an award of attorneys’ fees was

appropriate. Id. Schlobohm stated that only in cases where the parties’ agreement “intended to

avoid court litigation by resolving the entire dispute through arbitration, [would] intervention by

the court to award additional relief [ ] be inconsistent with the language and policy of the Federal

Arbitration Act.” Id. The Schlobohm court opined that this is especially the case when the

agreement provides that “any dispute arising from the contract” would be submitted to

arbitration. Id. (“If, as is often the case, the arbitration agreement had provided that ‘any dispute

arising from the contract’ would be submitted to arbitration, a strong case could be made that any

award of attorney’s fees, interest, and costs was necessarily submitted to the arbitrators and a

district court that made such an award would be impermissibly modifying the arbitrators’

decision).

        The Agreement in dispute here has the precise language that the Fifth Circuit in

Schlobohm suggested would preclude a court from adjudicating the issue of post-arbitration



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Crossville v. Glenwood

attorneys’ fees. It is evident that the Agreement does not authorize a court to award attorneys’

fees. Paragraph 10 states that “[a]ny dispute arising out of or in connection with this Agreement

. . . shall be determined by arbitration.” The parties intended to avoid court litigation by

resolving “any dispute” through arbitration, including attorneys’ fees. Glenwood, indeed, did

submit the issue of attorneys’ fees to arbitration. And, Glenwood, as the prevailing party,

received an award of attorneys’ fees in the arbitration award. Thus, while the agreement in

Schlobohm allowed the court to award additional attorneys’ fees, such is not the case here

because Glenwood agreed to submit its entire dispute to arbitration. Accordingly, we find that

the Agreement does not authorize the court to do more than enter the arbitration award as a

judgment.

        Because the FAA does not provide for an award of attorney’s fees in a confirmation

action, and because the Agreement does not authorize additional attorneys’ fees, we conclude

that there is no basis for departing from the American rule; Menke is directly on point. As held

in Menke, “[a]bsent statutory authorization or contractual agreement between the parties, the

prevailing American rule is that each party in federal litigation pays his own attorneys’ fees.”

Menke, 17 F.3d at 1009. Therefore, the district court did not err in denying Glenwood’s motion

for post-arbitration attorneys’ fees.

                2. Bad Faith

        Glenwood’s alternative argument is that Dr. Tabor litigated the arbitrator’s decision in

bad faith, and thus, it is entitled to its post-arbitration attorneys’ fees. Glenwood asserts that Dr.

Tabor has refused to abide by the arbitrator’s decision, and has essentially stalled the

confirmation of the Award by continuing to litigate the matter.




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Crossville v. Glenwood

        As we have already indicated, generally, “each party in federal litigation pays its own

attorneys’ fees,” id., except in circumstances “where a party or counsel have [sic] acted in bad

faith in the instigation or conduct of litigation.” Monroe Auto Equip. Co. v. Int’l Union, United

Auto., Aerospace, & Agric. Implement Workers, 981 F.2d 261, 270 (6th Cir. 1992) (quoting Ray

A. Scharer & Co. v. Plabell Rubber Prod., Inc., 858 F.2d 317, 320 (6th Cir. 1988)). In such

circumstances, “the court has the inherent authority to assess an award of attorney’s fees against

either the litigant or his attorney.” Id. “[A]n award of attorney’s fees . . . is an extreme sanction,

and must be limited to truly egregious cases of misconduct.” Id. “An unjustified refusal to abide

by an arbitrator’s award may constitute bad faith for the purpose of awarding attorneys’ fees.”

Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. United Farm Tools,

Inc., Speedy Mfg. Div., 762 F.2d 76, 77 (8th Cir. 1985) (citing Int’l Union of Petroleum & Indus.

Workers v. W. Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir.1983)).

        The record does not support Glenwood’s claim that Dr. Tabor refused to abide by the

arbitrator’s award in bad faith. While the record shows that Crossville and Dr. Tabor filed three

appeals to this Court, these actions do not rise to the level of “egregious misconduct” as

demonstrated in other cases warranting sanctioned attorneys’ fees. See, e.g., Dreis & Krump

Mfg. Co. v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. No. 8, 802 F.2d 247, 249 (7th

Cir. 1986) (awarding fees after concluding that the “‘company had no ground for challenging the

[arbitrator’s] decision in court,’” and finding that company filed suit after the statute of

limitations had run); see also United Farm Tools, 762 F.2d at 77 (finding attorneys’ fees were

warranted because the defendant failed to show any substantial ground for refusal to comply with

arbitrator’s award when it did not even act to have the award set aside).




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Crossville v. Glenwood

        Dr. Tabor presented adequate arguments during the litigation, one of which resulted in

the reversal of the district court’s confirmation. Crossville filed its first appeal after the district

court dismissed its case and referred it to arbitration.         On appeal, Crossville argued that

Glenwood waived its right to arbitration by first engaging in litigation; that Glenwood could not

enforce the arbitration clause because it was not a party to the Agreement; and that the district

court erred in allowing it to properly state a claim against Glenwood. The basis for Crossville’s

last argument was that it was unaware that Glenwood Systems, Inc. (a company that it entered

into the Agreement with, and believed to be a trade name of Glenwood Services, LLC), was a

separate and distinct entity from Glenwood Systems, LLC (whom it filed its complaint against).

We affirmed the district court’s dismissal and referral to arbitration. The parties participated in

arbitration proceedings, and without discussion the arbitrator found that Dr. Tabor was

personally liable. Crossville filed its second appeal after the district court confirmed that award.

The arguments raised during the second appeal were successful. In that appeal, Dr. Tabor

asserted that he had not agreed to be bound by arbitration, and thus, that he was not a party to the

arbitration. This Court agreed, finding that Dr. Tabor had not “clearly and unmistakably” agreed

to submit to arbitration. Crossville, 485 F. App’x at 823. Therefore, Dr. Tabor’s appeal of the

district court’s judgment was certainly not unfounded, as he prevailed in his assertion.

Consequently, we cannot say that Dr. Tabor engaged in bad faith in the filing and litigation of

two appeals, one of which resulted in a reversal in his favor.

        Based on the foregoing actions, we do not find that Dr. Tabor’s continued litigation

constitutes bad faith.




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        B. Fee Enhancement

        Glenwood also requests an enhancement of attorneys’ fees. “Fee enhancements are

permissible in rare cases of ‘exceptional success.’” Gonter v. Hunt Valve Co., 510 F.3d 610, 621

(6th Cir. 2007) (quoting Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005)). The

relevant inquiry is “whether an adjustment is necessary to the determination of a reasonable fee.”

Barnes, 401 F.3d at 745 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). The party seeking

an enhancement bears the burden of proving such necessity. See Blum, 465 U.S. at 898.

        Glenwood does not clearly state whether it requests an enhancement of the fees issued by

the arbitrator or additional attorneys’ fees that it sought from the district court. A review of its

memorandum in support of its motion states that “this Court should enhance any attorney’s fee

ultimately awarded.” Appellant Mem. in Support of Mot. for Att’y’s Fees, Case 2:04-cv-00091

Document 163 PageID #: 1334 (emphasis added). Because the arbitrator’s fees had already been

awarded, we interpret this statement to mean that Glenwood sought an enhancement of any

additional post-arbitration attorneys’ fees that the district court may have awarded. As held

above, Glenwood is not entitled to additional post-arbitration attorneys’ fees, and thus, it could

not be entitled to an enhancement of those fees. We uphold the decision of the district court,

which declined to enhance fees.

        C. Prejudgment Interest

        In its handwritten order denying Glenwood’s motion for attorneys’ fees, the district court

summarily denied Glenwood’s motion for prejudgment interest. The order cites Menke as

controlling authority for the denial of the motion. However, Menke, does not address the issue of

prejudgment interest, and the district court gave no other reason to support its decision. Because

attorneys’ fees and prejudgment interest are not mutually exclusive, the district court’s denial of



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Crossville v. Glenwood

Glenwood’s attorneys’ fees does not necessitate a denial of Glenwood’s request for prejudgment

interest. Thus, we remand to the district court to determine whether Glenwood is entitled to an

award of prejudgment interest. See Drennan v. Gen. Motors Corp., 977 F.2d 246, 253 (6th Cir.

1992) (“The district court, without explanation, declined to impose prejudgment interest . . .

[t]hus, the denial of prejudgment interest on the damages award is remanded with instructions to

support an award or denial of prejudgment interest with findings of fact incorporating its reasons

for its decision.”).

    IV. CONCLUSION

        Accordingly, we AFFIRM the district court’s judgment denying Glenwood’s motion for

attorneys’ fees and fee enhancement. The denial of prejudgment interest is REVERSED and

REMANDED for findings of fact.




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