Retribution

By Warren Pechin

Retribution takes place in Sacramento, California, in the late 1990s. The story details the crises the main character, Werner Manheim--the sixty-five-year-old owner of the largest structural engineering firm in the city--goes through personally and professionally after losing an arbitration proceeding to the architects GBA, who hired his firm on a new local high school project. His maneuverings to overcome the effects of he and his wife, Georgina, having to pay off the arbitration award and interest to the architects and his legal expenses to his long-time friend, Brent Bannock, who represented him during the arbitration, are detailed. The drama of adversaries and others on both sides and how they affect the escalating series of events, adding additional monetary stress, progresses to a surprising conclusion.

• Language: English
• Publisher: Page Publishing, Inc.
• Release date: Nov 4, 2022
• ISBN: 9798886540819

Book preview

cover.jpg

Retribution

Warren Pechin

Copyright © 2022 Warren Pechin

All rights reserved

First Edition

PAGE PUBLISHING

Conneaut Lake, PA

First originally published by Page Publishing 2022

ISBN 979-8-88654-080-2 (pbk)

ISBN 979-8-88654-081-9 (digital)

Printed in the United States of America

Table of Contents

Prologue

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 16

Chapter 17

Chapter 18

Chapter 19

Chapter 20

Chapter 21

Chapter 22

Chapter 23

Chapter 24

Chapter 25

Chapter 26

Chapter 27

Chapter 28

Chapter 29

Chapter 30

Chapter 31

Chapter 32

Chapter 33

Chapter 34

Chapter 35

Chapter 36

Chapter 37

Chapter 38

Chapter 39

Chapter 40

Chapter 41

Chapter 42

Chapter 43

Chapter 44

Chapter 45

Chapter 46

About the Author

Prologue

The last employee was leaving the office as architect Cade Borismann glanced out his office window and saw his joint-venture architectural partner, Justin Goodwin, park his car at the curb. Cade rose from his leather desk chair and walked through the carpeted admin area containing his other two brothers' offices, the secretarial area, and the chief financial officer's suite. He stepped down the two steps into the tiled-floor lobby to the windowed conference room beyond. Cade turned as Justin opened the heavy oak entry door and stepped into the oak-paneled lobby with several framed renderings of Borismann's projects hung on the walls. Cade motioned for Justin to join him then extended his hand to shake Justin's hand. They sat down opposite each other at the oversize oak conference table with plush leather chairs. Once seated, Cade leaned forward, grinned, then said, You ready for Werner Manheim in a few minutes, bud?

Justin shook his head no. After a month and a half of meetings every week, do you think he's finally ready to accept our proposal for his structural engineering fees for Sierra High School District's second new high school?

We're only asking him to accept the same reduced fee percentage we've already agreed to with Sierra to reuse our drawings from Heritage High.

Justin twisted his mouth and nodded. Normal reuse fees are half the original fee percentage because you aren't doing new drawings for the second school's buildings.

Cade smiled before replying. Sierra's going to pay GBA three-quarters of our original fee instead of only one half because we give them some benefits they usually don't receive.

Too bad Werner doesn't understand his—and our—losses from Heritage will be totally wiped out from fees we receive for Sierra's second new high school.

That doesn't count the additional fees for doing their third new school in a few more years or the new Modesto High School we just received, Cade added as he fiddled with his shoulder-length ponytail. Everyone on the design team will benefit from additional fees for those other two projects—more added profit for each of the design team members, including Manheim.

He's sure been stubborn during our recent negotiations.

Cade put his index finger over his lips. Shh, I hear Manheim coming up the walkway.

They stood and heard the shrieking wind outside as Werner opened the entry door, entered, and walked toward the glassed-in room with its etched glass doors bearing the Borismann corporate logo, a red uppercase B.

Grab this end chair, Werner, Cade said, motioning to him to take a seat.

Werner pulled out the chair, laid his thick manila file on the table, and glanced at each partner. I hope today we can finally come to an agreement on my fees for Sierra's new high school.

Second new high school, Justin corrected, mouth taut.

Yes. Werner nodded and said, After our huge losses on Heritage, it's time to right the ship.

Cade squinted then focused on Manheim's eyes. What do you think we've been trying to do?

I can't accept such a large reduction, Werner said. I'll never recover my losses.

Justin shook his head from side to side. What's the problem with the fee percentage?

Werner replied, You never consulted me before you agreed to Sierra's fee reduction—

Cade rolled his eyes and interrupted, Werner, we each have hired your firm many times over the years. Have either of us ever treated you or your firm unfairly in all that time?

No, Cade. But none of those other projects had large fees like these new high schools.

Justin banged his right palm on the table. You really don't think you'll make up for Heritage's losses after fees are received for Sierra's second new high school?

Werner furrowed his bushy white eyebrows. Look, guys, I need to right the ship as fast as possible. I'm bleeding badly from Heritage. Reducing the fee percentage just prolongs my agony.

You feel that you deserve a higher fee percentage than the rest of the design team members? Cade asked, shaking his head. We all had huge losses on Heritage, Werner.

Justin narrowed his eyes. Werner, how much do you figure you spent drawing the structural plans by hand compared to the computer-aided-drawings you agreed to provide?

Werner fingered his chin then said, I'd say expenses were higher for the hand-drawn plans.

Answer Justin's question, Werner. You do agree that your consultant contract with us required you to provide CAD drawings for Heritage High? Cade asked, raising his palms.

Yes, I agree, Werner replied. But I hired another structural engineering firm to do the gymnasium building design and drawings. He does everything by hand, not CAD.

So you just decided not to provide CAD for your work as well? Justin asked. You also failed to notify GBA that you hired another firm, your second violation of our agreement.

Werner blushed. What's the big deal? Who cares if I substituted another engineer?

I don't believe your carefree attitude, Cade said. Then why even sign an agreement?

Justin chimed in before Werner could answer. As your other engineer is now only your employee instead of your partner, you're now legally responsible for his work, right?

Oh, no, Werner said. I guess I didn't think of that. He dropped his eyes to his file on the table and moved the file toward him, flipping through it. I've really made a mess of things.

After a few seconds of silence, Cade spoke. Werner, talking to you is like talking to a brick wall. This is definitely a failure to communicate. Try this on: accept our fee proposal, which is way higher than a normal reuse project fee, or we'll find a firm that will.

The room quieted again. The partners glanced at each other.

Werner gritted his teeth then said, I guess I need more time to assess my options.

Cade looked at Justin, who nodded, then Cade said, Werner, your continued indecision and your stubbornness recently leaves us no choice. You'll never recover your losses from Heritage on one of our projects. Neither of us will ever hire your firm again for joint-venture or individual projects. We've both had it. We're finished with you. Do you understand?

Werner stood and said, Get lost, you guys, it's not over yet. He exited the room and building.

Cade and Justin exchanged glances, then Justin said, Let's get together tomorrow to discuss other structural engineering options for Sierra's second new high school.

Cade nodded. Sounds good to me. Call in the morning, and we'll set up a meeting time.

Justin smiled, rose, shook Cade's hand, and walked out of the office and back to his car.

The next morning, after Justin arrived at his office on Sacramento's Northside, he called a structural engineer friend in Fresno and outlined the fee situation for the next three new high schools. Confident the Fresno engineer understood the situation, Justin called Cade, and they agreed to meet later that morning. Justin drove the few miles to Cade's office, which was located closer to downtown than his, and they met in Cade's office, a large corner office with more framed drawings hung on the wall like the lobby.

Manheim called me thirty minutes ago, Cade said. He wants a negotiation conference with his attorney, Brent Bannock, and our attorney, Claude Olivier, at Bannock's office right away.

Justin shook his head from side to side. I see no hope for a resolution. I'm also not too thrilled with Olivier's temperament in case a heated conversation escalates the situation.

I hear you, Cade replied. Shall I call Manheim back?

Justin nodded his approval. Let's discuss the Fresno engineer's comments from my phone conversation with him this morning.

You're not thinking about us hiring any engineer from up here, Justin?

Manheim's structural firm is Sacramento's largest and also the best qualified for larger educational projects, but I don't trust him. I'm not so sure he wouldn't try to contact Sierra and insert himself into any other scenario of ours with other local engineering firms.

I'm not following your line of thinking, Cade said, shaking his head.

Justin smiled. I'm thinking that Manheim could find out from Sierra if another local engineering firm was being considered by us and, maybe, contact that engineer and either bad-mouth us or try to suggest a fee to the engineer that was higher than his fee so he'd appear to be reasonable.

I get your point, Cade said, smirking. That figures.

The owner of the engineering firm in Fresno is on board for the three projects we're going to do, and he made an interesting observation while we were talking on the phone this morning.

What was that? Cade asked, looking across his desk at Justin's hazel eyes.

He understood the fee arrangement for the next three high schools five minutes into our discussion as opposed to Manheim not figuring it out for a month and a half. The Fresno engineer knows our deal is way better than what normal reuse fees would be. His firm is ready.

Call him back and tell him we'll draw up the agreement for Sierra's second new high school and fax it to him before the end of the week. Then we'll tell Manheim we've already hired another engineer when we meet next week at Bannock's—depending on Olivier's schedule.

Justin nodded his approval, stood, shook Cade's hand, and exited.

Cade called Manheim back right after Justin left. Cade grinned as he began, Werner, I've discussed with Justin your request for a conference with us and our attorneys present. I've got to tell you, Justin's not very optimistic we'll accomplish anything.

Werner's mouth grew taut, then he responded, I just thought it couldn't hurt to try. We haven't been successful yet trying to agree on a fee using the weekly negotiation meetings.

We'll call Olivier and find out his availability. He'll be traveling from San Jose, so our meeting will have to be late morning or early afternoon. Once we check, I'll let you know.

I appreciate you and Justin agreeing to meet with our attorneys to settle this.

It took a few days to resolve everyone's schedules, and the meeting was set for Tuesday the following week at Bannock's office. The morning of the meeting, after picking Olivier up at the executive airport south of town, Cade drove them all to the meeting. Arriving at Bannock's, they went directly into the conference room and took their seats. After they sat, Bannock turned to Olivier.

Claude, what's your client's offer to Mr. Manheim?

Sheepishly, Olivier replied, Offer? I haven't had a chance to talk to them yet, Brent.

Brent shot back with What's going on here, Claude? while motioning to Manheim and Brent's son, Kevin, to stand. They darted out of the room with Olivier following them slowly.

Justin turned to Cade. Did you hear that? Olivier and Bannock have been talking about us making Manheim an offer to get rid of him or hire him, and we're just finding this out?

Cade nodded and smirked. Nice attorney we have, bud. Olivier went behind our backs.

Olivier returned in five minutes, sat down, and looked at the partners. Bannock wants your offer to Manheim for Sierra's second school if you're interested in hiring him. If not, he wants you to decide what you'd pay him to get rid of him on that project and the other two future reuse projects.

Cade shot out of his chair and stared down at Olivier. I think we've been set up, Claude, and you fell right into Bannock's trap, making him think we'd cave over Manheim's fee issue. I'm not particularly motivated to give either one of them any satisfaction whatever. Are you, Justin?

Justin chimed in, Cade, let's offer Manheim thirty grand to get rid of him.

I'd go to forty, pard, if it would get him out of our hair forever.

Olivier shook his head then said, That's it? Your best offer to Manheim is only forty grand?

The partners looked at each other, shrugged their shoulders, smiled, and nodded.

Fine, I'll tell the secretary we're ready, Claude replied, shaking his head again. He left and was back in a few seconds.

The double doors into the conference room exploded against the wall with a loud crash. Bannock, Kevin, and Manheim all burst into the room, then they abruptly sat down.

What's it going to be, gentlemen? Bannock said, sneering. What's your proposal?

Cade spoke, calmly but forcibly. We have a number. Tell us what you think is fair?

Okay, Bannock blustered. Werner's willing to reduce his fee on Sierra's second new high school to fifty grand less than his fee for their first high school.

We've already told Werner during our negotiations that amount won't fly, Justin said.

Then Werner wants the same fee I mentioned for the three high schools if he doesn't do them.

We won't be needing Werner's services on any future work, Mr. Bannock. Therefore, he won't receive another dime from us, Cade softly responded, smiling and looking at Justin, who smiled too.

If you pay him today, it's only a quarter million for the three schools, Bannock retorted.

Justin and I feel a total of forty grand is more than fair to get rid of him forever.

Manheim shot a look at Bannock and the partners then sneered before saying, I guess we're all wasting our time here today, aren't we?

Olivier glanced at the partners. Cade, Justin, is that it?

Cade and Justin stood up. Cade said, We've already hired a firm for those three schools.

The partners walked out of the room, not muttering a word. They walked through the musty-smelling lobby, through the door into the lobby, waited a moment, and stepped in the elevator. They went to Cade's car and waited for Olivier. In a few minutes, Claude appeared. Knees shaking as he stumbled and wobbled to the car, he stopped, opened the rear door, and sagged into the seat.

This was a waste of our time and yours, Claude, Cade coolly said. Pard, as my younger brother Hunter says, ‘Strap on your chaps, we're going to rodeo.'

They dropped Olivier off at the airport, and then the partners went back to Cade's office in silence. The joint-venture partners were ready to fight to the end. Olivier just wanted to start his vacation. The partners said their goodbyes at Cade's, and then Justin drove back to his office.

A year and a half later, after finishing the drawings for Sierra's second new high school and submitting them to the jurisdictional authorities, the partners received Bannock's Demand for Arbitration. In the mid-1980s, Justin was the president of the local chapter of the American Institute of Architects, the most-prestigious architect's organization in the nation. One of his responsibilities was to represent the chapter at the statewide organization's meetings held in Sacramento every other month, and he made friends with the president of the Los Angeles AIA chapter. When GBA received the arbitration notice, Justin contacted his friend who recommended the partners contact attorney Alex Conrad. The partners flew down to LA to meet Alex the next week.

After discussing Alex's degrees (a BS and Juris Doctorate from USC), his résumé (including over 150 cases tried or arbitrated with the American Arbitration Association), and his experience over two decades during their meeting, the partners hired him on the spot. Alex proceeded to request a narrative history of their conflict with Manheim, sent a letter of substitution to Bannock and the American Arbitration Association, requested a list of arbitrators from the AAA, submitted a retainer and fee agreement to GBA, and sent a summary letter of his activities to them as well. They found out that Alex researched the Martindale-Hubbell Law Directory ratings of the ten arbitrator candidates submitted for their selection and also the LexisNexis databank to determine jury verdict and settlement reports as they related to the potential arbitrators. Most of the arbitrators were summarily rejected by Alex based on their membership in the California Trial Lawyers Association, traditionally consisting of plaintiff lawyers. They ultimately picked one arbitrator candidate, and he was the arbitrator selected by the AAA.

The initial arbitration proceeding was held in May 1994. The owner of the substituted engineering firm from Fresno, who suffered from a minor speech disadvantage due to his Asian heritage, held his own under Bannock's questioning. He deflected Bannock's questions about copying Manheim's drawing by indicating his firm's drawings were done using computer-aided drafting and that they had used Manheim's drawings on Heritage High for reference only. Manheim's claim that his drawings for Heritage were copied was successfully defeated by the Fresno engineer's testimony.

Next up was the plan checker for the Division of the State Architect that plan-checks school projects. Although indicating the Fresno firm's and Manheim's Heritage plans were almost identical, Alex coaxed him into admitting the building codes were different years; the soil characteristics for both sites were different, causing the resulting foundations for the two schools to be different; and the structural calculations for both schools were different. The plan checker also indicated that he felt the similarity between the first two schools was because the schools were designed by the same architects.

Alex got Bannock's star witness, Werner Manheim, to admit he violated his agreement with GBA on the CAD issue and the notification issue for the substituted engineer. Manheim also admitted his office had used other firm's drawings for reference and that Manheim's office personnel concluded that none of the eighty structural sheets of drawings for both schools were absolutely identical to each other. Manheim also agreed that by doing the original drawings by hand instead of using CAD, his firm would spend considerably more money to modify their original hand-drawn plans in the future.

Bannock's last witness, his expert, was a retired architect who stated his job had been to research reuse fees architects received and that he had interviewed at least ten firms. Alex asked to see what the architect had written on the cover of his manila folder and asked him to explain the What is important is my opinion scrawled on the folder. Alex pointed out that if he were hired to collect data, then the most important thing would be the data. The expert witness broke down when Alex pursued questioning that uncovered that the expert witness juggled his data to substantiate Manheim's arbitration claim amount.

Bannock's case took over two days to present, so two additional arbitration days were held in August 1994. Alex interviewed each partner during the first day, and his structural-engineering expert witness was interviewed the last day. The expert defined structural engineering work as a process of analyzing, calculating, and then preparing construction documents. Based on his definition of independent work performed by each engineer on their respective high schools, the expert concluded that the Fresno engineer had performed a separate conceptualization on his project. He also stated that since the Fresno engineer was the Engineer of Record for Sierra's second new high school, Manheim didn't merit compensation on it or any future high schools the partners completed because Manheim wouldn't be the Engineer of Record for the school. As those words rolled off his tongue, the faces on each side of the table were a study in contrasts.

The arbitrator issued his preliminary findings in October 1994 that the partners had successfully defended against Manheim's original claims. After Alex submitted all the costs, including his fees, the partner's time and expenses, expert-witness fees, court costs, and miscellaneous expenses, the arbitrator reviewed Alex's submittals and determined the award to the partners in January 1995.

Bannock forced Alex to spend a year and a half perfecting a court order for payment of the arbitration award before Bannock filed an appeal that took eighteen more months to resolve. Additional interest was added to the arbitrator's award. Since appeals are only granted if the arbitrator didn't follow arbitration protocol or had a conflict of interest, Manheim's appeal wasn't heard because the judges concluded there wasn't arbitrator misconduct. The award and additional interest would stand. It was finally over after six years since beginning the negotiations between the partners and Manheim.

Chapter 1

My firm's on fire. It's toast. Thanks to you, Brent, and your son, Kevin, Werner Manheim said as he wiped his glistening brow while pacing around his K Street, Downtown Sacramento office, narrowing his dark-blue eyes at his attorney seated at his conference table. Over three years wasted on the Superior Court order and our appeal to the Ninth District Court of Appeals, additional interest after we lost the arbitration against the architects, and more for your fees as well. What do you have to say?

We're out of options at this point. I'm sorry, buddy, Brent Bannock replied, rubbing his chin and looking down at the table.

By far the worst decision of my life. I never expected this terrible result after you and your son, who did the research for you on my case, were so sure we could reverse the arbitrator's decision. Thirty-eight years of my successful structural-engineering business is now torched.

I know Kevin's faulty research on the copyright infringement issue wasn't up to his usual standard, Brent admitted. He didn't find the Player Piano 1906 court case Conrad found. Without Kevin finding that court case, I assumed your copyright infringement issue was viable.

Werner shook his head from side to side. I don't have to remind you what happens when you assume something, do I?

I know, Werner, I make an ass out of you and me, Brent replied then nodded.

In that old court case, Conrad found out the player piano company wasn't infringing because the player piano disk the music was on was a different medium than the original sheet music, Werner said, raising his arms. Kind of like the difference between hand drawings and CAD, right?

Yes, it is, Brent groaned, running his left hand through his brown hair cut in a butch, the same hairstyle he'd worn since his Navy duty in the Korean War. Then he continued, Conrad's structural-engineer expert witness applied that ‘different medium' definition to your case by showing the difference between your Heritage original ink-pen-on-mylar drawings and the Fresno structural-engineer firm's drawings on Sierra's second school that were done using computer-aided-drafting or CAD. The second structural engineer's drawings weren't copied from your Heritage drawings as we originally thought and indicated to the arbitrator in our court brief and your testimony. The CAD drawings for Sierra's second new high school were completed in a different medium by the Fresno firm than your original pen drawings. Conrad's Player Piano case and his expert's testimony kicked us in the fanny.

It sure did, Brent. In addition, Conrad's expert-witness testimony that the Fresno structural engineer performed an independent analysis on the campus buildings before he started his structural design didn't help our cause either. The different earthquake zone, site soils, and building code between the two projects drove home Conrad's assertion that the Fresno engineer didn't reuse my original design and drawings from Heritage High, Werner said, shaking his head and looking down his nose at Brent, who shifted uncomfortably in his chair.

Without that case being found by Kevin in his research and with my full attention being diverted from your case because of my other assigned cases, Werner, we were outhustled by Conrad. There's no excuse. I wish I had a better reason to give you for our defeat, Brent said. I'm embarrassed for the inattention to detail and our preparation for the arbitration.

So I get to add a lot more interest after your arbitration defense that turned out to be inadequate plus your legal fees? Werner said, shaking his head as he continued pacing.

I guess so, Werner. Dammit, Brent replied, looking down again, you seemed open to the appeal after the arbitration result came back unfavorable.

Why shouldn't I have been, Brent? You never told me when we discussed appealing that the only way an arbitrator's decision is overturned by an appeals court is if he fails to disclose he previously knew one of the parties before the arbitration begins, if he's guilty of incompetence, or if he fails to conduct the arbitration according to American Arbitration Association guidelines, Werner said.

You're right. We should have reviewed that before discussing pursuing the appeal.

By the way, Brent, I have a simple question for you. I know Kevin had the responsibility on my case to do the research. Was it his responsibility or yours to inform me about the conditions for a successful appeal before we all decided to pursue the arbitration appeal?

Brent looked down at the table for a few seconds once more then raised his eyes and answered Werner's question. It was my responsibility to discuss with you the ramifications for any appeal being turned down by the appeal court judges. I failed to do that prior to the appeal, and I'm sorry.

So am I, Brent. If I would have known about that beforehand and the very real potential for substantial additional interest and your fees, I might have put a stop to it right then. What a mistake.

I realize that now, Werner, Brent said softly, twisting his mouth.

I had no idea it would take over three years after the original arbitrator's decision to award the architects to finally settle this, Werner said, scowling. That's a lot of extra interest, buddy.

Brent raised his eyebrows and said, with braggadocio, I forced the opposing counsel to take twenty months to receive the Superior Court order after the arbitration award with some brilliant legal maneuvering. It's only taken eighteen more months for the appeal court's decision, Brent replied.

We never discussed the possibility of extra time originally, Brent, with the interest clock still ticking, Werner said as he stopped pacing and folded his arms. Was it worth my additional amount of interest to force Conrad to wait until receiving a valid court order? Before Brent could answer, Werner continued, Great, Brent. You come to my office after calling me this afternoon with the terrible news, telling me that my appeal of the award was rejected after an additional year-and-a-half wait, and all you can say is sorry?

I've already apologized once this afternoon, Werner. What else do you want me to say? Brent said, gazing up at the slim six-foot-two Werner towering above and his blue eyes looking down at him.

Werner replied, stopping his march for a brief period, Now because of your crafty legal posturing, I owe more interest beyond the original arbitration award plus your extra legal fees on top of your arbitration fees. Did you ever consider my extra interest and legal fee costs due to your posturing and the appeal of the arbitration?

I told you I was trying to save you from paying the arbitrator's award amount to the architects, Brent replied, pushing his rimless bifocals up his nose and looking at Werner, hoping for a positive response from him. He wanted to continue arguing some more, thought better of it because he didn't want to escalate their conversation, and quickly shut his mouth.

Werner began pacing, then spoke, "You not only didn't save the arbitrator's original award amount but also now my wife, Georgina, and I are saddled with