No. 91-330 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

AUDIT SERVICES, INC., a Montana corporation, Plaintiff and Respondent. 

### - 

## 3.~ 

## 1992-vsFRONTIER
-WEST, INC., a corporation, 6

# >;.?&fL

~k-.. . .2FSUPREMECOURj m.uEOFMoNrmA Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson,Judge presiding.

COUNSEL OF RECORD: For Appellant: Christopher B. Swartley; Datsopoulos, MacDonald & Lind,Missoula, Montana
For Respondent: Dennis Tighe; Cure, Borer & Davis, Great Falls, Montana

Filed: Submitted on Briefs: October 10, 1991 Decided: March 3, 1992

kJustice Karla M. Gray delivered the Opinion of the Court. The appellant, Frontier-West, Inc., appeals from a judgment entered by the District Court of the Fourth Judicial District, Missoula County. The judgment awarded the respondent, Audit Services, Inc., $1,791.32, representing $3,534.90 in delinquent contributions,liquidated damages, interest and audit fees less an offset of $1,743.58, plus $14,266 in attorney's fees and $91.35 

### in costs. We affirm and remand for determination of reasonable attorney's fees on appeal. The issues on appeal are: 1. Did the District Court err in determining that a contract existed between the parties? 2. Did the District Court err in awarding judgment to Audit Services for liquidated damages, interest and audit fees? Did the District Court err in awarding attorney's fees to 3. Audit Services? 4. IsAudit Services' claim estopped due to a failure to act upon constructive notice by Frontier-West? The appellant, Frontier-West, is a construction contractor. The respondent,Audit Services, is the assignee of the LaborersA.G.C. PensionTrust Fund,the Laborers-A.G.C. TrainingTrust Fund, the Laborers-A.G.C. Health andWelfare Trust Fund and the Southwest Montana Vacation 

## - SavingsTrust Fund (TrustFunds) for claims for fringe benefit contributions, liquidated damages, interest, audit fees and attorney's fees against Frontier-West.

2From July 1987 through October 1987, Frontier

-West was a subcontractor forAmericanAsphalt, Inc. on a project atMalmstrom Air Force Base inGreat Falls,Montana. On July 6,1987,FrontierWest signed a project

-only compliance agreement with the Montana District Council of Laborers. The compliance agreement obligated Frontier

-West to abide by the terms and conditions of the collective bargaining agreement between American Asphalt and the Laborers and to be bound by and become a party to the trust agreements establishing the Trust Funds. After Frontier

-West signed the complianceagreement,the Laborers unilaterally added a clarifying clause to that agreement. The clarification related solely to American Asphalt's obligations under the collective bargaining agreement. The trust agreementsestablishing the Trust Funds obligate an employer delinquent in paying fringe benefit contributions to pay liquidated damages and interest. Under the trust agreements, an employer is delinquent if it doesnotpay contributionsby the 20th day of the calendar month in which they are due. The trust agreements further provide that if an audit of an employer's payroll records discloses that the employer has a reporting error greater than five percent of the total hours to be reported, the employer must bear the costs of the audit. Frontier

-West employed a number of people to perform laborer work on theMalmstromproject andpaid fringebenefit contributions to the Trust Funds based upon the number of labor hours worked. However,Frontier

-Westdid notmake fringebenefit contributionsto 3the Trust Funds for 957 hours worked by the three sons of the principal owners of the corporation and for 546 hours worked by four other employees performing laborer work. On February 22, 1988, H. G. 'lGus" Sand, an independent accountant hired 

### by the Trust Funds, completed an audit of Frontier-West's corporatepayroll records covering the work on the Malmstrom project. The audit disclosed the unreported hours. Mr. Sand calculated that Frontier-West owed the Trust Funds $6,386.47 for contributions, liquidated damages, interest and audit fees. The results of the audit were sent to Frontier-West. Frontier-West took the position that it was not required to pay fringe benefit contributions for the hours worked by the owners' sons. It requested a revised audit separating the 957 unreported hours for the owners' sons from the total unreported hours. Mr. Sand supplied the revision, which recalculated the total into contested and uncontested portions. The contested portion of the audit covered the 957 unreported hours for the owners' sons and totalled $4,161.41. The uncontested portion of the audit covered the remaining 546 unreported hours and totalled $2,476.87, of which $1,730.45 represented fringe benefit contributions due to the Trust Funds. The remainder represented liquidated damages, interest and audit fees. InMay 1988, after receiving the revised audit, Frontier-West mailed a check to Mr. Sand for $1,730.45. The check was unaccompanied by instructions, remittance reports or correspondence. 

### Mr. Sand forwarded the check to counsel forAudit 4Serviceswho informed Frontier-West that the partial payment check would not be deposited pending receipt 

### of the remainingmoney owed for the contested anduncontestedportions of the audit. FrontierWest did not pay or offer to pay the remaining balance of the uncontested portion of the audit. Audit Services did not deposit the check,which was returned to Frontier-West after this suitwas filed. On September 16, 1988, Audit Services filed suit against Frontier-West pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 5 1001, et seq. Audit Services' complaint alleged that Frontier-West breached its collective bargaining and trust agreement obligations to pay fringe benefit contributions. It soughtpayment of the delinquent contributions, together with liquidated damages, interest, audit fees and attorney's fees for both the contested and uncontestedportions of the audit. On February 16, 1990, the National Labor Relations Board issued a decision concerning American Asphalt's collective bargaining agreement. TheNLRB clarified that the bargaining unit excluded children and spouses of owners or substantial shareholders. It further stated that its order was limited to clarification of the unit as related to the specific issuesbefore it and that it had no authority to resolve the contract dispute
over fringebenefit contributions involving Frontier-West. On March 12, 1991, Audit Services voluntarily dismissed that portion of its complaint which sought contribution payments for 5work performed by the owners' sons. It continued to seek collection of the contributions, liquidated damages, interest, audit fees and attorney's fees related to the uncontested portion of the audit. That same day, Frontier

-West unconditionally tendered $1,730.45, representing the delinquent contributions, in partial satisfactionof the sums alleged tobe due. Audit Services accepted Frontier

-West's tender. TheDistrictCourtheld ahearing onAudit Services' remaining claims related to liquidated damages, interest, audit fees and attorney's feesand subsequentlyentered judgment in favorofAudit Services. Thecourt concluded that an enforceablecontract existed between theparties and that 

### Frontier-west breached the contractby failing to pay fringe benefit contribution payments when due and liquidated damages, interest and audit fees when billed for those amounts. It concluded thatAudit Serviceswas entitled to recover $1,730.45 in delinquent contributions, $443.59 in liquidated damages, $724.29 

### in interest and $636.57 

### in audit fees. The total owingwas offsetby $1,743.58, representingFrontier-West'spartial payment of $1,730.45 and an overpayment of $13.13 to the Trust Funds. The District Court further concluded that Audit Services
was entitled to attorney's fees of $14,266. This appeal followed. I. Did the District Court err in determining that a contract existed between the parties? Initially,we note 

### an issue of importance which has not been From September 16, addressedby theparties 

### or the DistrictCourt. 61988,when the complaint

### was filed,until March 7, 1991, FrontierWest appeared in this action solely through its president, Edward P. Murphy. On March 7, 1991, the law firm of Datsopoulos, MacDonald & Lind gave notice of appearance on Frontier

-West's behalf and continues to appear on its behalf on appeal. We take this opportunity to cautionthe district courtswith respect to the propriety of allowing a corporateofficerwho 

### is not an attorney to appear on behalf of a corporation. A corporation 

### is a separate legal entity and cannot appear on its own behalf through an agent other than an attorney. Weaver 

### v. Law Firm of Graybill, et al.

(1990), 246 Mont. 175, 178, 803 P.2d 1089, 1091. In a case brought to enforce a contract between an employer and a labororganization, state courtshave concurrent jurisdiction with federal courts but, in exercising that jurisdiction, state courtsmust apply federal substantive law. Audit Services, Inc.v. Harvey Bros. Constr. (1983), 204Mont. 484,487, 665 P.2d 192, 794. A state court may rely on state contract law as long as it effectuates the policy underlying federal labor legislation. Kemmis 

### v. McGoldrick (9thCir. 1983), 706 F.2d 993, 996. Frontier

-West contends that it never approved the contract modification made by the Laborers. It asserts that there 

### was no valid contract upon which Audit Services could collect. The DistrictCourt ruled that the compliance agreement signed by Frontier

-West was a valid, enforceable contract because the modification did not materially alter Frontier

-West's obligations under the agreement, Frontier

-West ratified the agreement, and 7Frontier-West's expectationwhen it entered into the agreementwas to be bound. A trial court's findings of fact in a non-jury trial will not be disturbed unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. Conclusions of law will be upheld if they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. In its answer to the complaint filed against it in this action, Frontier-West admitted to being bound by the compliance agreement. It is well settled that the parties are bound by and estopped from controverting admissions in their pleadings. Grimsley v. Spencer (1983), 206 Mont. 184, 199, 670 P.2d 85, 93; Fey 

### v. A. A. Oil Corp. (1955), 129 Mont. 300, 323, 285 P.2d 578, 590. Inaddition,Frontier-Westalso ratified the agreement. This Court defined ratification in Audit Services, Inc. v. Francis Tindall Constr. (1979), 183 Mont. 474, 478, 600 P.2d 811, 813: II'Ratification' is defined to be the confirmation 

### of a previous act done either by the party himself or by another. (Citing authority.) And a confirmation necessarily supposes knowledge of the thing ratified.

(Citing authority.) It follows that to constitute a ratification there must be an acceptance of the results of the act with an intent to ratify and with full knowledge of all thematerial circumstances. Koernerv. Northern Pac. RY. Co. (1919),56 Mont. 511, 520, 186 P.
We further stated inTindall that "[ilt is themanifestation of the ratifying party which controls." Tindall, 183 Mont. at 478, 600 P.2d at 813. Here, Frontier

-West's outward expressions and actions clearly show its intention to be bound. Despite the present claim 337, 340.

8that no binding contract ever existed, Frontier

-West voluntarily paid a substantial portion of the contributions due to the Trust Funds pursuant to the terms of the agreement. We have previously held that such voluntary payments over a period of time with no attempt to rescind result in ratification of the agreement. Audit Services, Inc. v. Harvey Bros. Constr. (1983), 204 Mont. 484, 665 P.2d 792. We hold that the District Court correctlyconcludedthat
a valid, binding contract existed between the parties.
II. Did the District Court err in awarding judgment to Audit Services €or liquidated damages, interest and audit fees? Frontier

-West asserts that Audit Services is not entitled to liquidated damages, interest and audit fees related to the uncontested claim. It argues that the underlying uncontested fringe benefit contribution obligation was extinguished by Audit Services' rejectionof itstimely tender of thecheck for $1,730.45 prior to litigation. 

### It cites Lehrkind 

### v. McDonnell (1915), 51 Mont. 343, 350, 153 P. 1012, 1014, 

### where this 

### Court stated: An unconditional offer ingood faith toperform,by the party upon the obligation rests, coupled with the ability to perform, if rejected by the other party, is equivalent to full performance and extinguishes the obligation as to the party making the offer. Thus, according to Frontier

-West, it would be unreasonable to require it to pay penalties in the form of liquidated damages, interest and audit fees when it was Audit Services' choice to litigate and Frontier

-West had previously tendered substantial performance. 9The District Court concluded that Frontier

-West's tender was insufficientand had no effect on its contractual obligations. We find no error in this conclusion. An unconditional tender of performance extinguishes the underlying obligation. Section 28-1- 1202(1), MCA; Lehrkind, 51 Mont. at 350, 153 P. at 1014. However,
an offer of partial performance has no effect and will not extinguish the obligation. Section 28

-1

-1203, MCA. In order to constitute a valid tender, the party making the tender must offer
a specific amountwhich covers all that the otherparty is entitled to including interest,costs and attorney's fees. 86 C.J.S. Tender §§ 7, 8. When Frontier

-West signed the compliance agreement, it obligated itself, as it admitted in its answer to Audit Services' complaint,to be bound by and complywith the terms and conditions of the trust agreements establishing the Trust Funds. Under the factual circumstances of this case, Frontier

-West was obligated under the trust agreements topay liquidateddamages, interest,and audit fees as well as the delinquent contributions. The record shows that the fringe benefit contributions for the 546 hours worked by the four Frontier

-West employees involved were delinquent,pursuant to the trust agreements, in that theywere not paid by the 20th day of the calendarmonthwhen theywere due. The trust agreements obligate an employer delinquent in paying fringe benefit contributions to pay liquidated damages and interest. In addition, the 546unreportedhours resulted in a reportingerrorby Frontier

-West which was greater than five percent of the total 10hours reported: under the trust agreements, the magnitude of the reporting error obligated Frontier-West to bear the cost of examination of its payroll records. At the time Frontier-West received the "uncontested"portion of the audit, it had a contractual obligation to pay the $2,476.87 in contributions, liquidated damages, interest and audit fees set forth in that audit. Performance according to the terms of the trust agreements required payment of $2,476.87. The $1,730.45 tendered by Frontier-West constituted merely an offer of partial performance and,thus,had no effect on its contractual obligations under 5 28-1-1203, MCA. Audit Services specifically notified Frontier-West that its check was unacceptable and never deposited the check or reduced it to money. Given Frontier-West's clear contractual obligations on the record before us, we hold that the District Court did not err in awarding judgment to Audit Services for liquidated damages, interest and audit fees. 111. Did the District Court err in awarding attorney's fees to Audit Services? Frontier-West asserts that the District Court erred in determining that Audit Services was the prevailing party in this actionand, therefore,abused itsdiscretion inawarding attorney's fees to Audit Services. Citing Medhus 

### v. Dutter (1979), 184 Mont. 437, 603 P.2d 669,Frontier-West contends that theprevailingparty is the one which successfullyprosecutes or defends themain issue of a suit. It contends that the main issue in this case was 11whether Frontier-West owed fringe benefit contributions for the hours worked by the owners' sons as reflected in the contested portion of the revised audit. It argues that, because Audit Servicesdismissedthe owners' sons issue, Frontier-Westprevailed
on the main issue of the case and is entitled to attorney's fees. Frontier-West s reliance on the "mainissue"approach ismisplaced. Audit Services brought this action under ERISA to collect contributionsdueunder thetrust agreements. An actionto collect delinquent contributions is specificallyauthorizedby 29 U.S.C. 5 1145. Theprovisions governing attorney's feesunder ERISA are set forth in 29 U.S.C. 5 1132(g) as follows: (1) Inanyactionunder this subchapter (otherthan an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow areasonableattorney's feeand costs of action to either party. (2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan--



# ... (D) reasonable attorney's fees and costs of the action, to be paid by the defendant 

# . . .

... Under the above statute,attorney's fees are discretionary in most actions under the subchapter in accordancewith 5 1132(g) (1). However, in actions by a fiduciary for or on behalf of plan to enforce 5 1145, attorney's fees are mandatory if judgment is awarded in favor of theplan. Operating Engineers PensionTrustv. Reed (9th Cir. 1984), 726 F.2d 513. Because this is an action to enforce § 1145, the only question is whether this is an action by 12a fiduciary for or on behalf of a plan in which judgment 

### in favor of the plan was awarded. Here, the trustees or fiduciaries of the Trust Funds irrevocably assigned ownership of their claims against FrontierWest to Audit Services. As assignee of the claims against Frontier-West,Audit Services is theproper party plaintiff. Audit Services, Inc. v. Rolfson (9th Cir. 1981), 641 F.2d 757. In addition, Audit Services was substituted as a new party to the legal relationswith respect to the subjectmatter and acquired the trustees' right to performance from Frontier-West. 4 Corbin on Contracts, g 861, at 421-22 (1963). Judgmentwas awarded to Audit Servicesfordelinquentcontributions,liquidateddamages, interest and audit fees related to the uncontested portion of the audit. Therefore,theDistrictCourt's judgment fallswithin themandatory attorney's feesprovision of 5 1132(9) (2) and not thediscretionary provision of 5 1132(g)(1). Accordingly,we hold that the District Court properly determined that Audit Services was entitled to attorney's fees. Frontier-West further asserts that even if the District Court properly determined thatAudit Serviceswas entitled to attorney's fees, it abused its discretion by awarding Audit Services attorney's fees in the amount of $14,266. It argues that Audit Services requested the specific dollar amount of $2,100 in its complaint for attorney's fees and,because the complaintwas never amended to account for other attorney's fees,Audit Services should be entitled to a maximum of $2,100. We disagree. 13In R & W Leasing 

### v. Mosher (1981), 195 Mont. 285, 636 P.2d 832, we held that pursuant to Rule 15(b), M.R.Civ.P., relating to amendments to the pleadings to conform to the evidence, the district courtdid not err inawardinggreaterattorney's feesthan
were originally requested in the complaint even though the complaint was not formally amended. We concluded that no error occurred because a motion for attorney's fees, along with a supporting affidavit, had been filed with the court and, in conformitywith themotion, a hearing on attorney's feeswas held. In this case,we find no error on thepart of the DistrictCourt in awarding a greater amount of attorney's fees than requested in the complaint. An evidentiary hearing was held, with full notice to bothparties, on theprecise issue of the amount of attorney's fees tobe awarded. Audit Servicespresented an affidavit in supportof the amount of attorney's feesrequested,aswell as testimonywhich
was subject to cross-examination. At no time did Frontier

-West object to the evidence on the basis that it did not conform to the dollar amount requested in the complaint. Frontier

-West, citing Northwestern Nat'l Bank 

### v. WeaverMaxwell, Inc. (1986), 224 Mont. 33, 729 P.2d 1258, also contends that where a lawsuit involves multiple claims and multiple theories, an award of attorney's fees must be based only on the time spent 

### on those claims and theories 

### on which the prevailing party was successful. Itmaintains that the District Court abused its discretion in awarding Audit Services $14,266 in attorney's feesbecause substantiallyall of theproceedings before the court 14centered around the owners' sons fringebenefit contribution issue which ultimately was dismissed by Audit Services. The Ninth Circuit Court of Appeals has held that the correct method forcalculating the amount of attorney's feesunder ERISA is to use the "lodestar/multiplier" approach adopted by the United States Supreme Court 

### in Hensley

### v. Eckerhart (1983), 461U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40. D'Emanuele 

### v. Montgomery Ward & Co., Inc. (9th

### Cir. 1990), 904 F.2d 1379. The lodestar/multiplier approach essentially contains two parts. First, the court must determine a lodestar" amount by multiplying the number of hours reasonably expended on the litigation by a reasonablehourly rate. D'Emanuele, 904 F.2d at 1383. Indetermining the number of hours reasonably expended, the court, in addition to other factorswhichmay be appropriateunder the circumstances,shouldconsiderthose factors identified inKerr 

### v. Screen Extras Guild, Inc. (9th Cir. 1975), 526 F.2d 67,

# &. denied, (1976),425U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195,which have been held to be subsumed in the lodestar calculation. See Blum 

### v. Stenson (1984), 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891; Chalmers 

### v. City of Los Angeles (9th Cir. 1986), 796 F.2d 1205. Those factorsare: thenovelty and complexity of the issues, the special skill and experience of counsel, the quality 

### of the representation,the results obtained and the superiorperformance of counsel. 

# w,465 U.S. at 898

-90. The "results obtained" factor 

### isparticularly importantwhere
a party 

### is deemed prevailing even though it succeeded on only some 15of the claims for relief. Henslev, 461 U.S. at 434. Unrelated claims must be treated as if they had been raised in separate lawsuits and,thus,no attorney's feesmay be awarded for services
on an unrelated, unsuccessful claim. However, where a party's claims involve a common core of facts or arebased on related legal theories, "[mluch of counsel's time will be devoted generally to the litigation as awhole,making it difficult to divide the hours expended on a claim-by-claimbasis." Hensley, 461U.S. at 435. In such a situation, the court "should focus on the significance of the overall relief obtained 

# . . . in relation to the hours reasonably expended on the litigation." Henslev, 461U.S. at 435. Where a party has obtained excellent results, counsel should
recover a full compensatory fee; the award should not be reduced simply because the party failed to prevail on every contention raised in the lawsuit. On the other hand, 

### if a party has achieved limited success,a full compensatory feemay be an excessive amount
evenwhere the claimswere interrelated. Henslev, 461U.S. at 435- 36. "The courtnecessarilyhas discretion inmaking this equitable judgment.'' Hensley, 461 U.S. at 437. Once the number of hours has been set, the court must determine a reasonable hourly rate considering the experience, skill,and reputationof the attorney requesting fees. D'Emanuele, 904 F.2d at 1384. This determination is not made by reference to the rate actually charged by counsel,but rather to themarket rate in the community for similar services of lawyers of reasonably comparable skill,experience,and reputation. D'Emanuele, 904 F.2d 16at 1384. Once the lodestar amount has been determined, the second part of the "lodestar/multiplier" approach allows the court to increase
or decrease that amount based on the 

### Kerr factors which are not subsumed in the initial lodestar calculation. D'Emanuele, 904F.2d 1383. However, the initial lodestar amount is presumed to constitute a reasonable fee; thus, any upward or downward adjustmentsto that amount are rare. D'Emanuele, 904 F.2d at 1383. Although feeawardsare left to the discretion of thedistrict court, "[i]t remains important 

# . . . for the district court to provide a concise but clear explanation of its reasons for the fee award.It Henslev, 461 U.S. at 437. The Ninth Circuit, in discussing what constitutes a concise but clear explanation, has stated that 'I [clourtsneed not attempt toportray thediscretionary analyses that leads to their numerical conclusions as elaborate mathematical equations, but they must provide sufficient insight into the exercisesof discretion to enable [theappellate court] to discharge [its] reviewing function.'' Cunningham

### v. County of 

### Los Angeles (9thCir. 1988), 879 F.2d 481, 485,

## &. denied, (1990), 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773. Our review of the award of $14,266 in attorney's fees under the "lodestar/multiplier" approach does not reveal an abuse of discretion on the part of the District Court. The court conducted
an evidentiary hearing on the issue of attorney's fees. Thereafter, it concluded that Audit Services was entitled to attorney's fees pursuant to ERISA, 29 U.S.C. 5 1132(g) (2), which 17authorizes an award of reasonable attorney's fees. The court found that Audit Services' counsel expended 222.5 attorney's hours and 3.2 paralegal hours during the litigation of this action. It further found that the number of hours expended was reasonable consideringthe character of the legal servicesrendered,the labor and time involved,the character and importance of the litigation, and counsel's standing in the profession. The District Court stated that an additional basis for its finding that the number of hours expended was reasonable was Frontier-West's conduct in prolonging the litigation prior to such time as present counsel appeared on 

### its behalf: Unfortunately for the parties herein and the Court,many of defendant's motionswere repetitiveand,under the law of the case established by the Court's Orders, lacked merit. The litigation seemed to go on and on because of defendant's contradictory positions and efforts to reargue settled issues. The defendant filed three Motions for Summary Judgment, a Motion for Relief From Order and a Motion for Reconsideration. The repetitive and successive motions together with plaintiff's Motion to Compel and Motion for Summary Judgment necessitated four hearings in Missoula. With regard to the hourly rate,the District Court found that Audit Services' counsel possesses the professional skill and familiarity with labor law commensurate with his fifteen years' experience in handling employee benefit plan collections. The court determined that counsel's requested hourly rates of $65 for attorney's time and $30 forparalegal timewere "[rleasonable under the circumstances and well within the range of fees charged by attorney's [sic] 

### in Montana." Because Frontier-West had already paid a court ordered sanction 

### of $292.50 for attorney's fees, the 18total amount of attorney's fees owing to Audit Services was determined to be $14,266. Although the District Court did not specifically rely on the "lodestar/multiplier" approach in setting the amount of attorney's fees, it substantially complied with that standard. As required under D'Emanuele, the court calculated the "lodestar" amount, $14,266,by multiplying the number of hours reasonably expended on the litigationby a reasonable hourly rate. 

### It considered several factors similar to those factors subsumed in the lodestar calculation, including the complexity of the issues, the special skill and experience of counsel, the quality of representation and the range of fees charged in Montana. Audit Services original claims were for delinquent contributions, liquidated damages, interest, audit fees and attorney's fees relating to both the uncontested portion of the audit and the contested owners' sons portion of the audit. These claims all arose from the same core of facts: Frontier-West's failureand refusal topay certain contributions 

### in accordancewith the terms of the trust agreements. While the degree of success is important in calculating attorney's fees evenwhere all the claims
are interrelated,the DistrictCourtplaced significantemphasis on Frontier-West's conduct in prolonging the litigation. As noted earlier, the court necessarily has discretion in making the equitable judgment of whether the fees requested are excessive. Given the District Court's concise but clear explanation of its
reasons for the fee award,we hold that the court did not abuse its 19discretion in setting the amount of attorney's fees at $14,266. We note that the District Court, after calculating what was effectively the lodestar amount, did not considerwhether to apply
amultiplier to either increaseordecrease the award. However,we conclude that the court's failure to consider a multiplier is not fatal to 

### its award of fees in this action since, as noted earlier, the lodestar amount 

### is presumed to constitutea reasonable fee and any adjustments to that amount are rare. D'Emanuele, 904 F.2d at 1383. IV

# . IsAudit Services' claim estopped due to a failure toactupon constructive notice by Frontier

-West? Frontier

-West contends that the Trust Fundswere on notice in the summer of 1987 that it was not paying contributions for the hoursworkedby the owners' sonsand,therefore,Audit Services "is estopped from asserting that Frontier

-West owes trust fund contributions for the sons of the owners. 

# . . . While the argument 

### is not well presented, Frontier

-West is apparently asserting that a timely investigationby the Trust Funds regarding its intent to pay contributions for the owners' sons would have mitigated its liability. Theprinciples of equitableestoppelapply to employeebenefit plans. Dockray 

### v. Phelps Dodge Corp. (9th Cir. 1986), 801 F.2d 1149, 1155. Estoppel is available against a party 

### "[w]ho hasmade
a knowing false representation, or concealment of material facts, to a party ignorant of the true facts,with the intention that the 20other party should rely on the representation, and the other party actually and detrimentally relies on it." Dockrav, 801 F.2d at 1155.The record shows that the Trust Funds received a remittance report from Frontier

-West dated August 18, 1987 which stated only that the "sons of owners" were not reported. Frontier

-West seems to rely on the Trust Fund's lack of action between the summer of 1987 and February 1988 as a basis for estoppel. However, there is
no evidence in the record that would give rise to estoppel. It was not until the audit in February 1988 that the Trust Funds obtained information regardingthe owners' sons suchaswhich
sons were involved,whether they performed laborer work under the labor agreement and thenumber of hours theyworked. At that time, it 

### is clear that the Trust Funds requested full payment of the contributions. Stated simply,the record isdevoid of any evidence that the Trust Funds had an obligation to act before the audit of Frontier

-West's payroll records, made a knowing false representation to Frontier

-West or concealed any material facts from Frontier

-West. In any event, the owners' sons issue did not result in liability to Frontier

-West; thus, there was no detrimental reliance on its part. As a final matter, Audit Services has requested attorney's fees in responding to this appeal. The attorney's fees provision contained in 29 U.S.C. 5 1132(g)(2) applies to attorney's fees on appeal. Operating Engineers Pension Trusts

### v. B & E Backhoe (9th Cir. 1990), 911 F.2d 1347, 1356. Since these fees are mandatory, 21Audit Services is entitled to reasonable attorney's fees on appeal. Affirmed and remanded for determination of reasonable attorney's fees on appeal.

We concur: A

Chief Justice

22March

### 3, 1992 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentbyUnited Statesmail,prepaid,tothe followingnamed: Christopher

### B. Swartley DATSOPOULOS,MacDONALD&LIND 201 WestMain,Suite201 Missoula, 

### MT 59802 DennisTighe CURE, BORER &DAVIS,P.C. P.O.

### Box2103 GreatFalls,MT59403 

### EDSMITH CLERK

### OF

## THESUPREMECOURT STATE

### OFMONTANA