* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GAMBLE, SIMMONS & COMPANY,

Plaintiff-Appellee,

v. KERR-MCGEE CORPORATION,

Defendant-Appellant. Nos. 00-6062 & 00-6306 (D.C. No. 95-CV-256-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument.-2-

Kerr-McGee Corporation appeals from the district co urt’s orders granting summary judgment in favor of Gamble, Simmons & Comp any (Gamble Simmons) on Gamble Simmons’ complaint, awarding Gamble Simmo ns prejudgment interest, and vacating its earlier award of attorne y’s fees to Kerr-McGee as a prevailing party. This case is before us for a second round of appell ate consideration. Most of the pertinent facts are recited in our prior opinion in the case, Gamble, Simmons & Co. v. Kerr-McGee Corp. , 175 F.3d 762 (10th Cir. 1999), and we do not repeat them in detail here. Gamble Simmons sued Kerr-McGee to recover sums alle gedly due for tax consulting services. Gamble Simmons performed the services under a contract which called for Gamble Simmons to review sales anduse tax assessments for the years 1982-84 issued to Kerr-McGee by the LouisianaDepartment of Revenue and Taxation (Department). Under the terms of the contract, Kerr-McGee agreed to compensate Gamble Simmons in an amount equal to forty percent (40%) of the amoun t, if any, by which the total amounts of taxes, penalties and/or interest calculated through the date of this Agreement heretofore paid by Kerr-McGee to its vendors, the State of Louisiana and/or assessedby the Department but remain unpaid as of the date hereof, are refund ed or reduced[.] Appellant’s App., Vol. I at 28-29.1 Our previous decision in this matter came after the district court entered a

final judgment granting Kerr-McGee’s motion for sum mary judgment and awarding Gamble Simmons $665,418 for its services–“ the exact amount Kerr-McGee had already paid.” Gamble, Simmons , 175 F.3d at 766. In that decision, we also determined that (1) the contract was unambiguous; (2) Gamble Simmons was not entitled to any portion of statutory interest the Department of Revenue included as part of the refund; (3) Gamble Simmons was not entitled to forty percent of interest reductions Kerr-McGee rea lized in the 1985-87 audit period through application of the 1982-84 tax refun d; and (4) Gamble Simmons was not entitled under the contract to examine Kerr -McGee’s records for years subsequent to 1982-84, except to the extent inciden tal to the 1982-84 audit. -3- Gamble Simmons obtained a very favorable outcome fo r Kerr-McGee. After Gamble Simmons completed its examination, the Department admitted not only that Kerr-McGee owed no additional taxes or in terest for the years 1982-84, but that it had actually overpaid taxes in the amou nt of $1,447,985. Rather than refunding this entire amount directly to Kerr-McGee , however, the Department refunded a portion of the amount and applied the re mainder to offset taxes and interest that Kerr-McGee owed for 1985-87. The use of this offset has created a significant disagreement between the parties abou t computation of Gamble Simmons’ compensation. In our previous decision, we determined that Gamble Simmons was not entitled to compensation for any refund of payments Kerr-McGee made to the Department after the date of the agreement. 1 We noted, however, that the district court’s order was problematic on this point, “becau se it does not specifically address the issue of the alleged post-agreement pay ments, or sufficiently explain-4-

its rationale for determining that Kerr-McGee only owes Gamble Simmons what it had previously paid.” Id. at 772-73. We therefore remanded for further proceedings with regard to the discrete issue of the post-agreement payments and their effect on the ult imate calculation of Gamble Simmons’ compensation. On remand, the di strict court should afford the parties the opportunity to present evidence on the issue of the disputed post-agreement payments and p rovide a final, accurate calculation of Gamble Simmons’ compensatio n based on our rulings in this case. Id. at 773. On remand, the district court received further evid ence and conducted further proceedings on the issue of post-agreement payments. The parties essentially agreed on the figures for post-agreemen t payments, but disagreed radically on how those payments should be treated u nder the contract and under the scope of our mandate. The district court concl uded: Kerr-McGee’s post-agreement payments were reduced b y application of the tax credit generated by Gamble Simmons. The refore, it falls within the class of items on which Gamble Simmons’ contingency fee must be calculated. It is a reduction in taxes that was generated during the audit period. Id. at 216. Based on this finding, the district court awarded G amble Simmons compensation on the post-agreement payments. Kerr- McGee contends that this finding exceeded the scope of the mandate we issued in our previous opinion. We agree.-5-

“This court is vested with the authority to interpr et its own mandate.” Burton v. Johnson , 975 F.2d 690, 693 (10th Cir. 1992). “Under [the law of the case] doctrine, once a court decides an issue, the same issue may not be relitigated in subsequent proceedings in the same c ase. An important corollary of the doctrine, known as the ‘mandate rule,’ provides that a district court must comply strictly with the mandate rendered by the reviewing court.” Ute Indian Tribe v. Utah , 114 F.3d 1513, 1520-21 (10th Cir. 1997) (quotatio ns and citations omitted). In our previous decision, we specifically held thatKerr-McGee was entitled to exclude post-agreement payments from the calculation of Gamble Simmons’ compensation: Kerr-McGee claims it has paid Gamble Simmons everything it owes, and explains the relatively small monetary differen ce between the amount it paid and the amount Gamble Simmons reques ts as attributable to certain “post-agreement payments” i t made to the state of Louisiana. Kerr-McGee claims it made these paym ents to satisfy tax liabilities arising from Department audits enco mpassing the years 1985-1987, and that the Department later refunded t he payments after it determined Kerr-McGee had overpaid its tax liabi lities for 1982-1984. Kerr-McGee argues that because it made the payments after contracting with Gamble Simmons, it need not include these amounts in its compensation calculations. In suppo rt of this claim, Kerr-McGee cites the terms of the contract which li mit Gamble Simmons contingent interest to forty percent of anyrefund or reduction of amounts paid or assessed as of the date of the agreement.-6- We agree with Kerr-McGee to the extent that the con tract unambiguously limits Gamble Simmons’ compensation t o payments or assessments made prior to the execution of the a greement . . . . Gamble Simmons has no viable claim under the strictcontractual language to any refund of payments Kerr-McGee made, if any, subsequent to the agreement date. The contract is clear on this point, and its interpretation is properly the subject of s ummary adjudication. Gamble, Simmons , 175 F.3d at 772. Under the mandate previously issued in this case, G amble Simmons’ forty percent compensation should have been figured only on the amounts Kerr-McGee paid or was assessed at the time the Agreement was signed. We merely directed the district court to determine what amount of paym ents Kerr-McGee made after May 22, 1991, so that these payments could be exclu ded from the calculation of Gamble Simmons’ percentage. The district court wen t beyond the scope of the mandate and determined that Gamble Simmons was enti tled to compensation for the post-agreement payments, a finding directly con trary to our prior holding in the case. We therefore reverse the district court’s order awa rding judgment in favor of Gamble Simmons in the amount of $34,760.60. On remand, the district court should address the specific issue identified in ourprevious mandate: the amount of payments Kerr-McGee made subsequent to the date of the agreement and their effect on the mathematical calculation of Gamble Si mmons’ compensation.-7-

The remaining issues in this appeal involve whetherthe district court properly awarded Gamble Simmons pre-judgment intere st and whether it properly vacated its previous award of attorney’s fees to Ke rr-McGee and held that Kerr-McGee was no longer a prevailing party. Since we have determined the district court exceeded the scope of its authority in granting judgment in favor of Gamble Simmons, the pre-judgment interest award mus t also be vacated. On remand, the district court should further reconside r its order vacating the award of attorney’s fees in favor of Kerr-McGee in light of this order and judgment. The judgments of the United States District Court f or the Western District of Oklahoma granting judgment in favor of Gamble Si mmons in the amount of $34,760.60, awarding prejudgment interest on that award, and vacating the award of attorney’s fees in favor of Kerr-McGee are VACAT ED, and the case is REMANDED for further proceedings in light of this o rder and judgment.

Entered for the Court

Wade Brorby Senior Circuit Judge