* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

April 9, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MURUGESAN KANNAYAN,

Individually,

Plaintiff-CounterDefendant,

v.

DOLLAR PHONE CORPORATION, a

New York corporation; DOLLAR

PHONE INTERNATIONAL INC., a

BVI corporation,

Defendants-Counter 

Claimants-3rd Party 

Plaintiffs-Appellees,

v. 

CHAD DOBBINS, 

Third-Party-DefendantAppellant.

No. 09-6103

(D.C. No. 5:08-CV-00300-D)

(W.D. Okla.)

ORDER AND JUDGMENT*

Appellate Case: 09-6103 Document: 01018399429 Date Filed: 04/09/2010 Page: 1
1 “While we generally review a denial of attorneys’ fees for an abuse of

discretion, we review de novo any statutory interpretation or other legal analysis

underlying the district court’s decision concerning attorneys’ fees.” AeroTech,

Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir. 1997) (internal citation omitted).

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Before HARTZ, McKAY, and ANDERSON, Circuit Judges.

Chad Dobbins appeals from the district court’s order denying his motion to

recover attorneys’ fees in an action brought against him by appellees Dollar

Phone Corporation and Dollar Phone International, Inc. (collectively “Dollar

Phone”). Exercising jurisdiction under 28 U.S.C. § 1291, and reviewing the

indemnity provision at issue de novo,1

 we affirm.

Dollar Phone is a wholesale provider of telephone calling cards. In 2005, it

entered into sales agreements with two separate distributors of such cards, Time

Advisors, L.P. and Kannayan Family LLC (d/b/a “Spydernett”). The Time

Advisors agreement was signed by Dobbins on behalf of Time Advisors. The

Spydernett agreement was signed by Murugesan Kannayan, plaintiff and

counter-defendant below. Both agreements contained arbitration clauses and

cross-indemnification provisions.

In November 2007, Dollar Phone filed a demand for arbitration against

Kannayan pursuant to the arbitration clause in the Spydernett agreement, claiming

that Spydernett’s account was in default. In response, Kannayan claimed he was

not personally a party to the Spydernett agreement, and he filed a state court

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action against Dollar Phone seeking to enjoin the arbitration proceeding against

him in his individual capacity. Dollar Phone removed that action to federal court

based on diversity of citizenship and filed a counterclaim against Kannayan and a

third-party claim against Dobbins, seeking an order compelling both men to

participate in the arbitration proceeding. Dollar Phone alleged that Dobbins and

Kannayan were general partners of Time Advisors, and that Time Advisors and

Spydernett had commingled their accounts. Dollar Phone theorized that, as a

general partner of Time Advisors, Kannayan believed he was personally liable for

that entity’s debts, but that he did not believe he could be held personally liable

for Spydernett’s debts. Therefore, he used Spydernett’s funds to keep Time

Advisors’s account current, thereby causing Spydernett to default on its own

account.

Finding no evidence of a general partnership between Dobbins and

Kannayan, the district court rejected the argument that Time Advisors or Dobbins

could be held liable for Spydernett’s debt. Thus, it concluded that the arbitration

clause in the Time Advisors agreement could not possibly cover Dollar Phone’s

collection action against Spydernett. The court therefore awarded summary

judgment to Dobbins, dismissing Dollar Phone’s action to compel arbitration. 

Dobbins then moved for his attorneys’ fees under the indemnity provision of the

Time Advisors agreement, § 3.5, which provides as follows:

Appellate Case: 09-6103 Document: 01018399429 Date Filed: 04/09/2010 Page: 3
2 Due to a typographical error, § 3.5 erroneously states that the provider

agrees to indemnify itself instead of the distributor. The district court

acknowledged the error, noting that read literally, “the provision is nonsensical.” 

Aplee. Supp. App. at 3.

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Provider hereby indemnifies and agrees to hold [Distributor]2 its

officers, directors, shareholders, employees, agents . . . (the

‘Indemnified Parties’) harmless from and against any claim, liability,

damage, cost, and expense, including . . . attorneys’ and expert

witness fees, incurred by any of the Indemnified Parties directly

arising out of or in connection with the failure to comply with any

regulatory obligations or any other obligations contained herein.

Aplt. App. at 117. 

Consistent with its summary judgment ruling, the district court denied

Dobbins’s motion for attorneys’ fees because it concluded the Time Advisors

agreement “had no connection to Dollar Phone’s third-party action against him.” 

Aplee. Supp. App. at 3. Essentially, the court would not allow Dobbins to benefit

from the indemnity clause of the Time Advisors agreement and simultaneously

avoid application of its arbitration clause. Dobbins argues this was unfair,

pointing out that if Dollar Phone had prevailed, it likely would have been entitled

to its attorneys’ fees under the cross-indemnification provision, § 3.3. He claims

he should not be penalized for defeating Dollar Phone’s misguided attempt to

compel his participation in the arbitration proceeding. And he notes that other

jurisdictions, primarily California, guard against this unfair result by awarding

attorneys’ fees to the prevailing party on a contract claim even if the party

Appellate Case: 09-6103 Document: 01018399429 Date Filed: 04/09/2010 Page: 4
3 We note that Cal. Civ. Code § 1717 “was enacted to establish mutuality of

remedy where a contractual provision makes recovery of attorney’s fees available

for only one party, and to prevent oppressive use of one-sided attorney’s fees

provisions.” Hsu, 891 P.2d at 809 (internal quotation marks and brackets

omitted). The Time Advisors agreement contained cross-indemnity provisions

(§§ 3.3 & 3.5), allowing both sides to recover attorneys’ fees in the event of a

breach by the other party. Dobbins has not addressed whether, in light of the

specific policy considerations underlying § 1717, as set forth in Hsu, it would

apply under the circumstances of this case.

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successfully argues that the contract is inapplicable. See, e.g., Hsu v. Abbara,

891 P.2d 804, 808 (Cal. 1995) (applying Cal. Civ. Code § 1717). 

We do not disagree with Dobbins’s general hypothesis that Dollar Phone

would have been entitled to recover its fees had it prevailed; nor his assertion that

in certain jurisdictions, he would be entitled to his fees notwithstanding the

general inapplicability of the Time Advisors agreement. But unlike California,

Oklahoma has not enacted legislation or otherwise recognized a doctrine that

enforces an attorneys’ fees provision in an otherwise inapplicable contract.3

Thus, while we recognize the potential inequity that results from the district

court’s interpretation, we cannot say it was legally incorrect. 

The cardinal rule when interpreting an indemnity clause, as with all

contractual provisions, is “to ascertain the intention of the parties and to give

effect to that intention if it may be done consistently with legal principles.” Luke

v. Am. Surety Co. of N.Y., 114 P.2d 950, 951-52 (Okla. 1941). Section 3.5 is no

model of clarity. But in our view, most reasonably construed, it expresses Dollar

Phone’s intent to indemnify Time Advisors in the event of its own failure to

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comply with its regulatory or contractual obligations. Under this natural and

logical interpretation, the agreement harmoniously provides for the recovery of

attorneys’ fees by both parties if such fees were incurred in connection with the

other party’s breach. By contrast, Dobbins’s interpretation, unsupported by any

Oklahoma cases, would permit the recovery of attorneys’ fees in any lawsuit

between the parties so long as an allegation is made under the contract, no matter

how frivolous. The district court committed no error in rejecting this expansive

construction. Its judgment is therefore AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge

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