# United Stat es Court of Appeals For the First C ircuit

No. 03-2356 BYRON A. CROWE, Plaintiff, Appellee,

v. J.P. BOLDUC, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. David M. Cohen, U.S. Magistrate Judge ]

Before Selya, Circuit Judge , Stahl, Senior Circuit Judge , and Lynch, Circuit Judge . Michael J. Gartland , with whom Lee H. Bals and Marcus, Clegg & Mistretta, P.A. were on brief, for appellant. John M.R. Paterson , with whom Jennifer D. Sawyer and Bernstein, Shur, Sawyer & Nelson were on brief, for appellee.

April 22, 20041 Following the procedure described in G allagher v. Wilton

Enterprises, Inc. , 962 F.2d 120, 124 n.4 (1st Cir. 1992) (per curiam), the proposed pa nel opinion in this case has been circulatedto all active judges of the court prior to publication, and none has interposed an objection to the panel's overruling of Aubin . We caution that this procedure does not convert this opinion to an en banc decision nor does it preclude a suggestion of rehearing en banc on any issue in the case, whether or not related to the panel's treatment of Aubin . -2- SELYA, Circuit Judge . This is, as Yogi Berra might say, déjà vu all over again. Not long ago, we affirmed a verdict awarding plaintiff-appellee Byron A. Crowe $86,3 81.98 in his indemnityaction against defendant-appellant J.P. Bolduc. Crowe v. Bolduc , 334 F.3d 124 (1st Cir. 2003) ( Crowe II ). Flush from his appellate triumph, Crowe repaired to the district court and successfullypetitioned for incremental awards of prejudgment interest and attorneys' fees. Bolduc challenges both awards.

The prejudgment interest issue require s us to revisit prior circuit preced ent, specifically, Aubin v. Fudala , 782 F.2d 287 (1st Cir. 1986). Aubin held that the proper vehicle for the initial assessment of mandatory prejudgment interest, wholly omittedfrom an earlier judgment, is a motion to correct the judgment pursuant to Fed. R. Civ. P. 60(a) rather than a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). Id. at 290. Recognizing that an intervening Supreme Court decision has undermined Aubin 's resolution of this point, we overrule that determination and hold that, in such circumstances, resort should be made to Rule 59(e). 1 H owev er, since Crowe justifiably relied-3-

u pon, and faithfully followed, existing circuit precedent, w e direct that this holding operate in a purely prospective fashion. Consequently, we affirm the award of p rejudgment interest even though Crowe failed to file his motion within the ten-day period delineated in Rule 59(e).

The remaining question involves Crowe's entitlement vel

non to attorneys' fees. The answer to that question depends principallyon contractual arrangements entered into by and between the parties. Fairly read, those agreements authorize fee-shifting in the circumstances of this case. Thus, we affirm the award of attorneys' fees as well. I. BACKGROUND

We do not write on a pristine page. This appeal is an offspring of a transaction that has been mired in litigation for several years. That litigation has inspiredtwo published circuit court opinions, each of which r eco unts pertinent aspects of the factual background. See Crowe II , 334 F.3d at 128-30; Achille Bayart & Cie v. Crowe , 238 F.3d 44, 45-46 (1st Cir. 2001) ( Crowe I ). We refer the reader who hungers for further details to those opinions. For present purposes, we offer only an overview.

Crowe was th e pr esident and sole shareholder of Andrew Crowe & Sons, Inc. d/b/a Crowe Rope Company (Crowe Rope). Once an industry leader, Crowe Rope fell upon hard times. By December of 1995, the company owed over $8,600,000 to its prime commercial-4-

lender, Fleet Bank. To secure this debt, Fleet heldmortgages on, andse curi ty interests in, all the assets of Crowe Rope. When Crowe Rope defaulted on its obligations to Fleet, Bolduc emerged as a white knight.

Acting through a web of holdi ng companies, Bolduc purchasedthe Fleet debt and stepped into Fleet's shoes as Crowe Rope's principal securedcreditor. Crowe Rope then transferredall of its assets to one of Bolduc's nominees (the Operating Company) andCrowe and his wife transferred some business-related real esta te held in their names to another of Bolduc's nomine es. I n exchange, Bolduc and/or the Operating Company agreedto (i) cancel the existing debt and release the Crow es fro m any personal liability, (ii) pay the Crowes (or the survivor of them) a $40,000 lifetime annuity, (iii) pay Crowe a $60,00 0 o ne-time fee for consulting services and for agreeing not to compete, and (iv) hold the Crowes harmless should creditors cry foul. We discuss below the various documents that memorialize this transaction.

The deal left Crowe Rope's trade creditors barking up a defoliatedtree. On May 6, 1998, one such creditor, Achille Bayart & Cie, brought suit against the Crowes seeking to set aside th e $40,000 annuity as a fraudulent transfer. See Crowe I , 238 F.3d at 46. After some preliminary skirmishing, not relevant here, the district court granted the Crowes' motion for judgment as a matter of law. We affirmed that decision. Id. at 49.2 The fee award included some expenses incurred by Cro we' s

lawyers in prosecuting Crowe II . We see no need to differentiate between the components of that award for purposes of this opinion. -5- In Crowe ' s view, certain provisions in the agreements between the parties bound Bolduc to defray the legal fees that he hadexpended in defending Crowe I . Accordingly, he brought suit against Bolduc in a Maine state court to recoup those fees. Bolduc removedthe case to the district court based on diversity of citizenship and the ex istence of a controversy in the requisite amount. 28 U.S.C. §§ 1332(a)(1), 1441(a). The parties proceeded by consent before a magistrate judge. See id. § 636(c). After a two-daytrial, a jury accepted Crowe's view of the arrangement and awardedhim $86,381.98. Crowe II , 334 F.3d at 130. We affirmed that award on July 3, 2003. Id. at 139.

That did not endthe case, but, rather, set the stage for further proceedings. On July 25, 2003, Crowe invoked Fed. R. Civ. P. 60(a) and moved to correct the judgment by adding prejudgment interest. He also moved for an award of attorneys' fees pursuant to Fed. R. Civ. P . 54(d)(2) . The magistrate judge granted both motions, tacking on $3,437.44 in p rejudgment interest and $67,872.50 in attorneys' fees. 2 This appeal ensued. II. PREJUDGMENT INTEREST

Bolduc's challenge to the prejudgment interest award turns on abstract questions of law. We therefore review the lower court's decision de novo. D isola Dev., LLC v. Mancuso , 291 F.3d3 The district court originally entered judgment on Se ptember

19, 2002 in the amount of the jury ve rdi ct ($86,381.98). On November 12, 2002, the court entered an amended judgment in the same amount following the denial of Bolduc's post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50(b). For consistency's sake, we refer throughout to the judgment entered on November 12, 2002 (noting, however, that it makes no difference here which of these two judgments started the clock for purposes of filing other post-trial motions). -6- 83, 86 (1st Cir. 2002); R.I. Charities Trust v. Engelhard Corp. , 267 F.3d 3, 5 (1st Cir. 2001).

When a plaintiff obtains a jury ve rdict in a diversity case in which the substantive law of the forum state supplies the rules of decision, that state's law governs the plaintiff's entitlement to prejudgment interest. See R.I. Charities Trust , 267 F.3d at 8; Royv. Star Chopper Co. , 584 F.2d 1124, 1135 (1st Cir. 1978). Maine law broadly entitles prevailing civil plaintiffs to prejudgment interest as a matte r of right . Me. Rev. Stat. Ann. tit. 14, § 1602 (repealed and replaced by Me. Rev. Stat. Ann. tit. 14, § 1602-B, effective for judgments entered on or after July 1, 2003); Sawyer v. Walker , 572 A.2d 498, 499 (Me. 1990). It is, therefore, beyond serious question that Crowe's success in Crowe II carried with it an entitlement to prejudgment interest so long as that entitlement was properly preserved.

Despite Crowe's right to recover prejudgment interest, the district court's judgment in Crowe II made no mention of inte res t, but simply confirmed the damage award. That judgment enteredno later than November 12, 2002. 3 On July 25, 2003 — more-7-

than eight months thereafter — Crowe filed a motion to augment the judgment by adding prejudgment interest. Crowe brought this motion under Fed. R. Civ. P. 60(a), which provides in pertinent part that "[c]lerical mistakes in judgments . . . and errors therein arising from oversight or omission may be corrected by the court at an y time . . . on the motion of any party."

Bolduc opposed Crowe's motion, asseverating that Rule 60(a) was the wrong procedural vehicle and that recourse to the proper vehicle — Fed. R. Civ. P. 59(e) — was time-barred. Rule 59(e) governs motions to alter or amend a judgment and explicitly provides that all such motio ns "shall be filed no later than 10 days after entry of judgment." Because Crowe had filedhis motion to add prejudgment interest more than 250 days after the entry of judgment, the ten-day deadline, if applicable, had long since expired. The dist rict court rejected Bolduc's importunings. It found this case "indistinguishable in all material respects" from

our earlier decision in Aubin , 782 F.2d at 290. Relying principallyon that precedent, the court anointed Rule 60(a) as an acceptable vehicle for adding prejudgment interest and adjudged Crowe's motion timely. Aubin , however, was a weaker reed than the district court thought. We explain briefly.

In Aubin , the plaintiff won a jury verdict in New Hampshire's federal district court and, thus, became entit led to-8-

prejudgment interest as a matter of New Hampshire law. Id. at 289 (citing N.H. Rev. Stat. Ann. § 524:1-b) . The court entered a judgment that referred only to the amount of damages and the plai ntiff subsequently moved to add prejudgment interest. The district court allowed the motion even though it had been filed

more than ten days after entry o f the jud gment. We affirmed, holding that a Rule 60(a) motion was an appropriate vehicle for correcting a final judgment that omitted mandatoryprej udgment interest and that, therefore, the plaintiff's motion was not subject to the temporal strictures of Rule 59(e). Id. at 290.

This court decided Aubin in 1986. Three years later, the Supreme Court decided Osterneck v. Ernst & Whinney , 489 U.S. 169 (1989). In that case, the Court held that a motion to augment a previouslyentered judgment by adding discretionary prejudgment interest is properly classified as a motion to alter or amend the judgment, and, thus, must be brought under Rule 59(e). Id. at 175. The Court reasoned from the premise that the use of Rule 59(e) is appropriate when a m otion involves "reconsideration of matters properlyencompassed in a decision on the merits ." Id. at 174 (quoti ng White v. N.H. Dep't of Emp. Sec. , 455 U.S. 445, 451 (1982)). It then noted two considerations pertinent to discretionaryprejudgment interest: (i) prejudgment interest traditionallyhas been regarded as a make-whole remedy and as a part of the plaintiff's complete compensation, and (ii) motions to4 Fed. R. App. P. 4(a)(4) renders ineffective notices of appeal

filed during the pendency of a timely Rule 59(e) motion. -9- addprejudgment interest to a verdict neither raise issues "wholly collateral to the judgment in the main cause of action" nor require

an inquiry "wholly separate from the decision on the merits." Id. at 175-76 (citations and internal quotation marks omitted). Based largelyon these two considerations, the Court concluded that motions for the addition of discretionary prejudgment in teres t involve "the kind of reconsideration of matters within the merits of a judgment to which Rule 59(e) was intended to apply." Id. at 176. And as a policy matter, requiring resort to Rule 59(e) for this purpose "further[s] the important goal of avoiding piecemeal appellate review of judgments." Id. at 177 (discussing Fed. R. App. P. 4(a)(4)). 4

Strictlyspeaking Osterneckis distinguishable. The Court there was dealing with a belated attempt to secure a discre tionar yaward of prejudgment interest. See id. at 175. Crowe seizes on this distinction, pointing out that this case — like Aubin — involves a motion to add mandatory prejudgment interest. That distinction carries little weight. For one thing, the consider ations relied upon by the Osterneck Court apply with equal force to augmentations involving mandatory prejudgment interest. For another thing, the OsterneckCourt took pains to note:-10- We do not believe the result should be different where prejudgment interest is available as a matter of r ight. It could be a rgued that where a party is entitled to prejudgment interest as a matter of right, a reexamination of issues relevant to the underlying merits is not necessary, and therefore the motion should be deemed collateral in the sense we hav e used that term. However, mandatory prejudgment interest, no less than discretionary prejudgment interest, serves to "remedy the injurygiving rise to the [underlying] action," and in that sense is part of the merits of the district court's decision. Moreover, . . . "[w]hat is of importance here is not preservation of conceptual consistency in the status of a particular [type of motion] as 'merits' or 'nonmerits,' but rather preservation of operational consistency and predictability. . . ." "Courts and litigants are best served by the bright-line rule . . . that a motion for prejudgment interest implicates the merits of the district court's judgment." Id. at 176 n.3 (citations omitted).

To be sure, this footnote is dictum, but it is much more than an offhand comment. We have recognized before, and today reaffirm, that "[c]arefully cons ider ed statements of the Supreme Court, even if technically dictum, must be accorded gr eat we ight andshould be treated as authoritative." United States v. Santana , 6 F.3d 1, 9 (1st Cir. 1993); accord McCoyv. MIT , 950 F.2d 13, 19 (1st Cir. 1991). The Osterneck footnote is purposeful, straightforward, and soundly reasoned. All nine Justices subscribedto it. And, finally, the footnote remains unblemished; it has not been scarred by any subsequent Suprem e Court5 We use the adjective "init ial " inasmuch as we limit our

holding to those cases in which the judgment, prior to the attemptedrevision, is altogether silent as to prejudgment interest. We do not address the somewhat different scenario in which the judgment awards interest but either fails to quantify the amount or erroneously computes the amount. It may well be that, in t hose circumstances, Rule 60(a) is an appropriate vehicle fo r a subsequent mot ion to fix the size of the interest award. See , e.g. , Pogor , 135 F.3d at 388; Kosnoski , 33 F.3d at 379. This case does not pose that question, and we leave it for another day. -11- pronouncement. In these circumstances, we are unwilling to turn a blind eye to the clear import of footnote 3.

Following Osterneck 's lead, we conclude that Rule 59(e) is the proper procedural vehicle for motions seeking to revise a judgment to include an initial awardof prejudgment interest (whether mandatoryor discretionary). This holding aligns us with the three other courts of appeals that have addressed the question post- Osterneck . The Tenth Circuit has held squarely, as do we, that Rule 59(e), rather than Rule 60(a), is the proper vehicle for motions seeking an initial award of mandatory prejudgment interest, Capstick v. Allstate Ins. Co. , 998 F.2d 810, 813 (10th Cir. 1993), andtwo other circuits have indicated their assent to that proposition, see Pogor v. Makita U.S.A., Inc. , 135 F.3d 384, 388 (6th Cir. 1998) (dictum); Kosnoski v. Howley , 33 F.3d 376, 378 (4th Cir. 1994) (dictum). 5 To the extent that our earli er decision in Aubin is inconsistent with this holding, it is overruled. See supra note 1.-12- Despite this square holding, our journey must continue. Crowe asserts that he nonetheless was entitled to rely upon Aubin because that decision had no t be en expressly overruled (and, indeed, had been followed by the federal district court in Maine

even after the Osterneck decision). An y abrogation of Aubin should, he suggests , b e purely prospective, and should not have force in this case.

As a general rule, judicial decisions are retroactive in the sense that they apply both to the parties in the case before the court and to all other parties in pending cases. James B. Beam Distilling Co. v. Georgia , 501 U.S. 529, 535 (1991); Amann v. Town of Stow , 991 F.2d 929, 934 (1st Cir. 1993) (per curiam). This rule is absolute in the criminal context. Griffith v. Kentucky , 479 U.S. 314, 328 (1987). In civil cases, however, the rule admits of

a narrow equitable exception. See Chevron Oil Co. v . Hus on , 404 U.S. 97, 106-07 (1971); see also Am. Trucking Ass'ns, Inc. v. Smith , 496 U.S. 167, 178 (19 90) (plurality op.) (reaffirming preeminence of Chevron Oil in the civil context post- Griffith ).

The exception works along the following lines. A court in a civil case may apply a decision purely prospectively, binding neither the part ies before it nor similarly situated parties in other pending cases, depending on the answers to three questions. First: does the court's decision announce a new and unexpected rule of law, by, say, overruling settled precedent on which the-13-

part ie s may have relied? Second: does the history of the jurisprudence in the affected area of the law, together with the new rule's purpose and effect, counsel for or against retroactive application? Third: would retroactive application give rise to a substantial inequity? Chevron Oil , 404 U.S. at 106-07. Selective prospectiv ity , however, is not permissible; if a new rule is applied to the parties in the rule-creating case, then it must be appliedretroactively to similarly situated parties in all pending

cases. Harper v. Va. Dep't of Tax. , 509 U.S. 86, 97 (1993). In a civi l case, then, a court has only two available options : pur e prospectivityor full retroactivity. Glazner v. Glazner , 347 F.3d 1212, 1218 (11th Cir. 2003) (en banc); George v. Camacho , 119 F.3d 1393, 1399 n.9 (9th Cir. 1997) (en banc).

We find this case a suitable candidate for purely prospective application of a new rule. In jettisoning Aubin , we set aside binding circuit precedent that authorized submission of initial m otions for mandatory prejudgment interest under Rule 60(a). Although the Osterneck dictum presaged the demise of the Aubin rule, Osterneck did not expressly abrogate Aubin . Thus, Aubin remained good law in this circuit. Bolduc has pointed to no opinion at either the circuit or district level that raised the possibilitythat Aubin was lingering on life support. Typical cases, such as the decisions in Mirra Co. v. Maine School Administrative District No. 35 , No. 01-165, 2003 WL 21026786, at *2-14-

(D. Me. May 6, 2003) and Lewis v. City of Brockton , Civ. No. 85- 1158, 1990 W L 26840 , at *1 (D. Mass. Feb. 23, 1990), cite confidentlyto Aubin , and proceed to apply i t wit h no mention of the Osterneck dictum. Under these circumstances, Crowe's reliance

on Aubin was understandable and the first prong of the Chevron Oil test is, therefore, satisfied. See Glazner , 347 F.3d at 1220; George , 119 F.3d at 1401.

The second Chevron Oil f ac tor also counsels against retrospective application here. The newly minted requirement that mandatoryprejudgment interest motions must be brought pursuant to Rule 59(e) is meant to provide parties with clear direction and certaintyin litigating their claims. Applying th e ru le retroactivelyto parties who justifiably have relied on a previous rule does not advance any discernible goal.

The final Chevron Oil signpost points in the same direction. We think that it would be patently unfair to subject a partyto a forfeiture for assiduously following binding circuit precedent. See Geor ge , 119 F.3d at 1399 (" [N]o court has ever applieda change to a procedural rule in a manner that serves to forfeit a liti gant 's substantive rights when that litigant had fullycomplied with the provisions of the rule as it existed at the time he acted.") (emphasis in original); see also Wagner v. Daewoo Heavy Indus. Am. Corp. , 314 F.3d 541, 544-45 (11th Cir. 2002) (en-15-

banc) (refusing to a ppl y new rule restricting right to amend pleadings retroactively).

Our conclusion in favor of purely prospective application fits well with cases that change the allotted time in which to make

a filing, but refuse to appl y th e new rule retroactively. For example, when a decision replaces a limitations period previously establishedin circuit precedent with a new, less generous rule of timeli nes s, courts regularly have refused to apply the new rule retroactivelyif doing so would bar an action timely brought under the pr ior l aw. See , e.g. , St. Francis Coll. v. Al-Khazraji , 481 U.S. 604, 608-09 ( 1987); Che vron Oil , 404 U.S. at 107. Another example is George , in which the Ninth Circuit over turnedcircuit preceden t th at had allowed litigants in the Northern Mariana Islands an additional seven days within which to file notices of appeal. Despite the fact that the overruledprecedent was based on

a flat misreading of the applicable local rule, the George court made its decision purely prospective and refused to apply the new interpretation to bar the appellant's appeal. 119 F.3dat 1395-96.

That ends this aspect of the matter. Although we hold that motions t o au gment previously entered judgments by adding mandatoryprejudgment interest must be brought under Rule 59(e) and therefor e mu st meet that rule's ten-day filing requirement, we direct that our holding be applied in a purely prospective manner. Consequently, this holding does not affect Crowe. And because-16-

Crowe's motion was timely under then-binding circuit precedent, we affirm the district court's award of prejudgment interest. III. ATTORNEYS' FEES

We turn next to the decision awarding Crowe the attorney s' fees incurred in prosecuting Crowe II . The American rule, followed in Maine, generally requires that each party compensate his or her own lawyers. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240, 247 (1975); Jackson v. Inhabitants of Searsport , 456 A.2d 852, 855-56 (Me. 1983) . This ru le, like almost every general rule, admits of various exc eption s. One exception is that prevailing parties are entitled to attorneys' fees if the parties agreed by contract to a fee-shifting arrangement. Jackson , 456 A.2d at 856.

In this case, the district court concluded that the documents memorializing the transaction authorized the shifting of fees. Bolduc challenges this conclusion.

There are three agreements which, taken together, govern the arrangements between Crowe and Bolduc. The centerpiece is an agreement dated December 8, 1995 among the Crowes, Bolduc, and the Operating Company. In it, Crowe agreed to trans fer a ll of Crowe Rope's assets to the Operating Company and the real estate to another of Bolduc's nominees in satisfaction of the Fle et debt. The same agreement bound Bolduc and the Operating Company to pay the Crowes the $40,000 lifetime annuity and the $60,000-17-

cons ulting/noncompetition fee. The second document, executed on the same date, is a letter agreement between the Crowes and Bolduc. The letter agreement is, broadlyspeaking, an indemnity agreement. It imposed two obligations on Bolduc. First, it bound him to hold the Crowes harmless against any loss in the event that a court decree interruptedthe payment of either the $40,000 annual stipend

or the $60,000 one-time fee. Second, it obligated Bolduc to defend the Crowes against creditor suits or, alternatively, reimburse them for the reasonable cost of defending such actions. See Crowe II , 334 F.3d at 135-38 (approving a jury finding that the letter agreement imposed that obligation on Bolduc).

The third document is a guaranty (the Guaranty), executed one week after the other two agreements. The Crowes, Bolduc, and the Operating Company are parties to the Guaranty. In the portion of the Guaranty that is of interest here, Bolduc guaranteed payment to the Crowes of certain obligations due to them under the December 8 agreements.

This appeal centers on the district court's recension of the Guaranty. In this inquiry, Maine law supplies the substantive rules of decision (the agreements so stipulate, and th e p arties concede the point). The district court held that the Guaranty was, in pertinent part, unambiguous, and that the indemnity provisions encompassedthe costs incurred by Crowe. Whether a contract is unambiguous presents a question of law subject to plenary review.-18-

Blackie v. Maine , 75 F. 3d 716, 721 (1st Cir. 1996). So too the interpretation of unambiguous contract terms. Id.

The interpretive principles that guide our decision are familiar. A guarantee is simply a specialized form of contract and, as such, is subject to t he same canons of construction that applyto other types of contract s. Handy Boat Serv., Inc. v. Prof'l Servs., Inc. , 711 A.2d 1306, 1308 (Me . 1998). Thus, the language of the Guaranty should b e inte rpreted "to effect the parties' intentions as reflected in the wr itt en instrument, construed with regard for the subject matter, motive, and purpose of the agreement, as well as the object to be accomplished." Id. Where, as here, the parties entered into several contracts in the

same time frame and for the purpose of completing a unitary transaction, the contracts ought to be construed together. Bumila

v. Keiser Homes of Me., Inc. , 696 A.2d 1091, 1094 (Me. 1997).

With these tenets in mind, we turn to th e s pecific provisions at issue here. Perti nently , the Guaranty provides in paragraph 4:

Bolduc hereby unconditionally and irrevocably guarantees the payment by the Operating Compan y of all payments due to the Crowes or either of them from the Operating Company unde r and on account of the December 8, 1995 Agreement and pursuant to a certain letter agreement also dated December 8, 1995 from Bolduc to the Crowes, a true copy of which is attachedhereto and made a part hereof, as and when said payments are due, including without limitation , all co mpensation fo r-19- noncompetition and consulting services and [annuity] payments . . . . T he G uaranty also includes a fee-shifting provision stating that "Bolduc agrees to pay all o [sic] the Crowe's [sic] reasonable legal fees, costs, and expenses in collecting the Obligations or in enforcing this Guaranty ." The question before us reduces to whether this fee-shifting pro vision, when read together with the remainder of paragraph 4 and the December 8 agreements, obligates Bolduc to pay Crowe the legal fees incurred in prosecuting Crowe II . The parties offer competing interpretations of the feeshifting provision. Crowe begins from the premise that he is entitledto recoup legal fees expended in "enforcing this Guaranty." In paragraph 4, Bolduc guarantees the making of payments "p urs uant to [the] letter agreement." One payment due under the letter agreement was for the cost of defending Crowe I . See Crowe II , 334 F.3d at 138. Since Bolduc initially refused to make that payment and Crowe only recovered the sums due after bringing suit, Crowe II should be characterized as an action to enforce Bo ldu c's obligation under paragraph 4. Hence, Crowe is entitledto recover legal fees expended in prosecuting that action.

Bolduc begin s from the same premise — that Crowe is entitledto legal fees expended in "enforcing this Guaranty" — but reaches the opposite conclusion. Under paragraph 4, Bolduc "guarantees the payment by the Operat ing Co mpany of all payments6 Lea ving considerations of waiver to one side, such a

conclusion might have consequences. When a contract is ambiguous, it s interpretation becomes a question of fact, and the cou r t typicallywill look to extrinsic evidence to determine the parties' intent. See Fashion House, Inc. v. K Mart Corp. , 892 F.2d 1076, 1083 (1st Cir. 1989); Acadia Ins. Co. v. Buck Constr. Co. , 756 A.2d 515, 517 (Me. 2000). -20- due to the Crowes or either of them fromthe Operating Company under and on account of the December 8, 1995 Agreement and pursuant to [the] letter agreement. " Bol duc reads this language as

re stri cting his liability to payments due from the Operating Company to the Crowes. Since Crowe II was an action to collect a payment Bolduc individually owed Crowe under the letter agreement (not to collect a payment due from the Operating Company), it should not be characterized as an action to enforce the Guaranty. Hence, Crowe is not entitled to recover attorneys' fees for prosecuting that action.

At first blush, it may seem that we ar e faced with an ambiguous contract (although neither Crowe nor Bolduc subscribes to that vie w). 6 On further examination, however, that is not the

case. After all, a contract need not "negate every possible construction of its terms in order to be unambiguous." Waxler v. Waxler , 458 A.2d 1219, 1 22 4 (Me. 1983). Nor is a contract ambiguous "merely because a pa rty to it . . . disputes an interpretation that is logically compelled." Blackie , 75 F.3d at 721. In the last analysis, a contract is ambiguous only when its terms, fair ly co nstrued, yield more than one reasonable-21-

interpretation. Lexington Ins. Co. v. Gen. Accid. Ins. Co. , 338 F.3d 42, 47 (1st Cir. 2003); Blackie , 75 F.3d at 721.

In this inst a nce, Bolduc's interpretation of the feeshifting provision is unreasonable. A contract ordinarily should be interpreted so as to give force t o a ll of its provisions. Blackie , 75 F.3d at 722; Acadia Ins. Co. v. Buck Constr. Co. , 756 A. 2d515, 5 17 (Me. 2000). It follows that an inquiring court should, whenever possible, avoid an interpretation that renders a particular word, clause, or phrase meaningless or relegates it to the category of mere surplusage. Acadia Ins. , 756 A.2d at 517. Here, the fatal flaw in Bolduc's argument is that it renders nugatory paragraph 4's reference to the letter agreement.

According to Bolduc, his only obligation under paragraph 4 is to ensure payments due from the Operatin g Company. This interpretation overlooks the fact that paragraph 4 applies not only to payments "under and on account of the December 8, 1995 Agreement" but also to payments required "pursuant to [the] letter ag reement." The Operating Company is liable, under the ma i n De cem ber 8 agreement, to make the annuity and consulting/noncompetition payments, and the Guaranty clearly applies to those payments. But the Operating Company is not liable for anypayments under the letter agreement (it is not even a party to that agreement). If we were to accept Bolduc's thesis, paragraph 4's reference to payments "pursuant to [the] letter-22-

agreem ent" would be meaningless. That would contravene the rule that, when ever possible, contracts should be construed to give effect to every word, clause, and phrase. See Blackie , 75 F.3d at 722; Acadia Ins. , 756 A.2d at 517.

Bolduc has offered nothing that would square his construction of the Guaranty wit h the reference to the letter agreement; he would simply have us read that reference out of the contract. But we are not so struthious as to ignore p lain language, nor are we at libertyto disregard terms purposefully insertedinto an agreement by experienced businessmen. See Mathewson Corp. v. Allied Marine Indus., Inc. , 827 F.2d 850, 856 (1st Cir. 1987).

These principles apply with especial force when, as now,

an alternative reading exists tha t gives meaning to every word, clause, and phrase. Blackie , 75 F.3d at 722. Crowe's interpretation of paragraph 4 is an entirely plausible reading of the language chosen by the parties. Because there is no room for any reasonable difference of opinion as to the meaning of paragraph 4 in the context of this case, we ho l d that the Guaranty unambiguouslycovers the indemnity payment due under the letter agreement. That seals the deal: Crowe's successful prosecution of Crowe II and h is co llection of a payment secured by the Guaranty7 Crowe's motion for fees was made pursuant to Fed. R. Civ. P.

54(d)(2), and the timing of the motion was dictated by the terms of an agreement between the parties. In this proceeding, Bolduc has not questioned either the amount of the fee award or the procedural vehicle used to obtain it. We therefore eschew any discussion of these matters. -23- triggeredBolduc's d uty to defray Crowe's attorneys' fees. The district court did not err in awarding those fees to Crowe. 7 IV. CONCLUSION

We need go no further. For the reasons elucidated above, we affirm both the award of prejudgment interest and the award of attorneys' fees.

Affirmed .