United States Court of Appeals,

Second Circuit.

A.P. MOLLER–MAERSK A/S, Plaintiff–Appellee,

v.

COMERCIALIZADORA DE CALIDAD S.A., d.b.a. Quality Print, S.A., Defendant–Cross–Defendant–Appellant,

Ocean Express Miami, Defendant–Cross–Claimant,

Carga Global, S.A., Caniz International Corporation, Caniz Logistica, S.A., Defendants–Cross–Defendants.FN*

 

FN* The Clerk of the Court is directed to amend the caption to read as shown above.

 

No. 10–1777–CV.

July 7, 2011.

 

Appeal from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge).

Charles S. Donovan (Lisa M. Lewis, on the brief), Sheppard, Mullin, Richter & Hampton LLP, New York, NY, Appearing for Appellant.

 

Eric E. Lenck (William J. Pallas, on the brief), Freehill Hogan & Mahar LLP, New York, NY, Appearing for Appellee.

 

Present DENNIS JACOBS, Chief Judge, and GUIDO CALABRESI and REENA RAGGI, Circuit Judges.

 

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment entered on October 22, 2009, is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED to the district court for further proceedings consistent with this order.

 

Defendant Comercializadora de Calidad S.A., d.b.a. Quality Print, S.A. (“Quality Print”) appeals from the district court’s (1) judgment in favor of plaintiff A.P. Moller–Maersk A/S (“Maersk”) on its claims of, inter alia, breach of contract and abuse of process; (2) enjoinment of Quality Print’s related lawsuits in Panama and Guatemala; (3) contempt sanction for Quality Print’s violation of the injunction; and (4) denial of a motion to modify the judgment to vacate maritime attachments of Quality Print’s electronic fund transfers (“EFTs”), see Fed.R.Civ.P. Supp. R. B(1). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision.

 

1. Judgment on Maersk’s Claims

Quality Print submits that the district court (a) lacked admiralty jurisdiction and (b) erred in failing to recognize that Quality Print was not bound by the forum selection clause in Maersk’s bill of lading. Neither argument has merit.

 

a. Subject Matter Jurisdiction

On appeal from the denial of a challenge to subject matter jurisdiction, we review a district court’s factual findings for clear error and its legal conclusions de novo. See APWU v. Potter, 343 F.3d 619, 623–24 (2d Cir.2003). The district court did not err in concluding that it possessed admiralty jurisdiction, see 28 U.S.C. § 1333(1), because Maersk’s claims indisputably involve a multimodal contract “requir[ing] substantial carriage of goods by sea” to transport Quality Print’s four printing press containers from Milwaukee to Guatemala. Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 27 (2004); ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d 105, 114 (2d Cir.2009) (“[A] contract confers maritime jurisdiction so long as its principal objective is maritime commerce.” (internal quotation marks and ellipsis omitted)). Quality Print’s assertion that it is not bound by the contract confuses the jurisdictional question with the merits of Maersk’s claims.

 

b. Forum Selection Clause

Quality Print asserts that the instant action could not be maintained in the Southern District of New York because it was unaware of and not a party to the forum selection clause. See Phillips v. Audio Active Ltd., 494 F.3d 378, 383–84 (2d Cir.2007) (stating that courts considering enforcement of forum selection clause inquire (1) whether clause (a) was “reasonably communicated to” resisting party; (b) is “mandatory or permissive”; and (c) applies to “claims and parties” at issue; and (2) whether resisting party rebutted presumption of enforceability with “strong showing that enforcement would be unreasonable or unjust” or that clause is invalid (internal quotation marks omitted)). The record is to the contrary.

 

Quality Print’s claim that it lacked notice of the forum selection clause is belied by its insistence on $10 million cash security to avoid arrest of Maersk’s cargo vessels unless Maersk agreed to waive the forum selection clause. Moreover, as discussed more fully below, Quality Print’s foreign suits repeatedly cited to Maersk’s booking confirmation covering Quality Print’s four containers, which incorporated Maersk’s standard bill of lading by reference. Maersk’s standard bill of lading, including the forum selection clause, was available on Maersk’s website. Quality Print’s alleged inability “to obtain even a copy” of the bill of lading until six months after initiating the Panamanian actions, Appellant’s Br. at 19, refers only to Maersk’s purported refusal to provide the original bill of lading for the three containers delivered to Guatemala, not to Quality Print’s knowledge of the forum selection clause. This record is sufficient to demonstrate that the forum selection clause was reasonably communicated to Quality Print.

 

Quality Print further submits that it cannot be bound by the forum selection clause because it is not a party to Maersk’s bill of lading or booking confirmation, which is between an intermediary shipper and Maersk. Quality Print’s “non-signatory status is not dispositive of the question of applicability of [the] forum clause,” Phillips v. Audio Active Ltd., 494 F.3d at 391, because the record before the district court demonstrated that Quality Print adopted the booking confirmation by relying on it to bring two separate foreign actions against Maersk, see Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty, 408 F.3d 1250, 1254 (9th Cir.2005) (“[A] cargo owner ‘accepts’ a bill of lading to which it is not a signatory by bringing suit on it.”).

 

Specifically, Maersk alleged that Quality Print filed in rem and in personam complaints in Panama seeking damages for “the total loss of its printing machinery,” Second Am. Compl. ¶¶ 31, 34, after one of its four containers was purportedly damaged by flooding from Hurricane Katrina when it did not arrive in time for shipment. Maersk attached to its complaint Quality Print’s Panamanian complaints, which repeatedly refer to the booking confirmation. Maersk further submitted multiple affidavits stating that Quality Print’s Panamanian complaints sought damages for the containers covered by the booking confirmation and alleged that the printing press was the “object of the cargo transportation contract by sea.” Decl. of Gabriel Sosa ¶ 3. Maersk also alleged that Quality Print brought a third action against Maersk’s agent in Guatemala. Maersk’s declarations stated that Quality Print’s Guatemalan claims were “essentially the same” as those brought in Panama, seeking breach of contract damages and citing the booking confirmation as evidence. Decl. of Jose Estuardo Luna ¶¶ 2–5. Although Quality Print submitted an affidavit in opposition to Maersk’s motion to dismiss, claiming that Quality Print’s Guatemalan suit was based on damages from Maersk’s failure to deliver an original bill of lading for the three transported containers, Quality Print failed to oppose Maersk’s Rule 56.1 Statement, which stated that Quality Print’s Panamanian and Guatemalan lawsuits alleged “loss/damage to the same printing press carried under Maersk[‘s] Booking Confirmation.” Rule 56.1 Stmt. ¶ 10.

 

The parties also submitted to the district court an English translation of the lower Panamanian court’s decision to retain jurisdiction. Although the Panamanian court held the forum selection clause inapplicable because no bill of lading issued for the fourth container, it described the booking confirmation and characterized Quality Print’s claims as seeking damages for a printing press subject to a contract of transport. We note that the Panamanian Supreme Court eventually reversed, determining that the booking confirmation is the operative contract and that, as a result, the forum selection clause applies.

 

During this appeal, the parties have submitted at our request translations of Quality Print’s foreign complaints. We are not persuaded that the translation of the Guatemalan complaint raises sufficient ambiguity regarding whether the Guatemalan suit relied, at least in part, on the booking confirmation. In any event, we need not address the issue. Because Quality Print never submitted translations to the district court, the record below supported Maersk’s claims.

 

Based on this record, the district court did not err in concluding that Quality Print’s foreign suits asserted breach of contract claims that necessarily relied on the booking confirmation to succeed and that, as a result, on the facts of this case, Quality Print adopted the booking confirmation by bringing suit on it, thereby binding itself to the bill of lading incorporated by reference, including the forum selection clause. See Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty, 408 F.3d at 1254; Ana Distribution, Inc. v. CMA–CGM (Am.) Inc., 329 F.Supp.2d 565, 567 (S.D.N.Y.2004) (binding consignee to forum selection clause agreed to by goods’ seller because consignee sued carrier under bill of lading, “in effect” arguing that it was a third party beneficiary) .

 

We need not address Quality Print’s assertion in its supplemental submission that its Panamanian suits were based only on the bill of lading that Caniz International Corporation (“Caniz”) issued to Quality Print because Quality Print failed to raise this argument in its opening or reply brief. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir .2005). In any event, Quality Print’s claim is contradicted by its repeated citation to Maersk’s booking confirmation and failure to name Caniz as a defendant in its foreign actions.

 

Nor must we address the district court’s alternative holding that the intermediary shipper’s agreement to the booking confirmation bound Quality Print through limited agency principles. See Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. at 33–35 (holding that intermediary may bind cargo owner to “liability limitations for negligence resulting in damage”).

 

2. Anti–Suit Injunction

Quality Print challenges the district court’s enjoinment of its foreign lawsuits on the grounds that those suits (1) did not frustrate public policy as Quality Print was not bound by the forum selection clause and (2) were not vexatious or likely to cause delay, inconvenience, expense, inconsistency, or a race to judgment. See Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d 111, 119 (2d Cir.2007) (discussing requirements for issuance of anti-foreign-suit injunction). We review the district court’s grant of an anti-suit injunction for abuse of discretion. See id. at 118–19.

 

As an initial matter, we conclude that Quality Print’s challenge to the enjoinment of its Panamanian actions is moot because it was able to pursue those proceedings to the Panama Supreme Court, which dismissed the actions based on the forum selection clause. Quality Print is free to seek modification or termination of the injunction from the district court.

 

Quality Print forfeited its arguments regarding enjoinment of the Guatemalan suit by failing to raise them in the district court. See, e.g., Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 123 (2d Cir.2009). Indeed, Quality Print failed to oppose Maersk’s motion for an injunction and did not file an interlocutory appeal. See 28 U.S.C. § 1292(a)(1). Even if we were to consider Quality Print’s arguments, we would not identify an abuse of discretion because, as discussed above, the record before the district court supported its determination that Quality Print relied on the booking confirmation to file suit after Maersk initiated the federal action and despite the forum selection clause. The evidence of duplicative suits also supported the district court’s determination that the Guatemalan suit was vexatious and likely to cause significant delay, inconvenience, expense, inconsistency, and a race to judgment. Moreover, the district court was entitled to consider the totality of Quality Print’s actions in both foreign suits, including its arrest of Maersk’s vessels at the “choke point” of the Panama Canal and its insistence on cash security to release the vessels unless Maersk waived its forum defense.

 

3. Contempt Sanction

Regardless of the propriety of the anti-suit injunction, we identify no abuse of discretion in the district court’s contempt finding, see Southern New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 145 (2d Cir.2010) (reviewing contempt finding under “more rigorous” “abuse of discretion standard” (internal quotation marks omitted)), because Quality Print indisputably failed to comply with the district court’s unambiguous order, see Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 656 (2d Cir.2004) (noting that party who disagrees with district court order expected to obey “decree until it is modified or reversed” (internal quotation marks omitted)). We nevertheless vacate the contempt sanction and remand for clarification.

 

Although a civil contempt sanction may “serve dual purposes” of “secur[ing] future compliance with court orders” and “compensat[ing] the party that has been wronged,” such sanction may not be “purely punitive.” Id. at 657–58 (noting that compensatory sanction must “correspond at least to some degree with” damages caused by contumacious conduct). It appears that the district court awarded Maersk attorneys’ fees for the foreign lawsuits and interest on the $10 million bond based on Quality Print’s contempt and the grant of summary judgment on Maersk’s contract and abuse of process claims. But because the judgment does not distinguish between the damages that accrued before or after the anti-suit injunction, we cannot be sure that the contempt portion is not punitive. Accordingly we remand to the district court for clarification without expressing a view as to whether any change need be made to the judgment amount.

 

4. EFT Attachment

Quality Print challenges the district court’s refusal to vacate the EFT attachment. Regardless of whether we review de novo or for abuse of discretion, compare Scanscot Shipping Servs. GmbH v. Metales Tracomex LTDA, 617 F.3d 679, 681 (2d Cir.2010) (reviewing de novo district court’s legal conclusion regarding whether EFTs “properly attachable”), with Southern New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d at 143 (reviewing district court’s imposition of contempt sanctions for abuse of discretion), we conclude that the EFT attachment must be vacated.

 

Maersk acknowledges that our holding in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), cert. denied, 130 S.Ct. 1896 (2010), invalidated Rule B attachments of EFTs, and that Jaldhi applies retroactively to cases open on direct review. See Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87, 91 (2d Cir.2009). Maersk nevertheless asserts that this case presents a “narrow exception” to Jaldhi because of the district court’s discretionary power to award contempt sanctions and the “compelling equitable considerations.” Appellee’s Br. at 32, 35 (internal quotation marks omitted). We have “specifically forbidden resort to” such “equitable considerations in addressing motions to vacate pre-Jaldhi attachment orders.” Eitzen Bulk A/S v. Ashapura Minechem, Ltd., 632 F.3d 53, 55 (2d Cir.2011). Accordingly, we conclude that the district court was obligated to vacate the attachment order, see Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 214 (2d Cir.2010), and we remand the case with directions to order such vacatur.

 

5. Conclusion

We have considered Quality Print’s remaining arguments on appeal and conclude that they are without merit. Accordingly, the district court’s judgment is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further proceedings consistent with this order.

Court of Appeal, First District, Division 2, California.

RGW CONSTRUCTION, INC., Plaintiff and Appellant,

v.

BAR TRACTOR, INC., Defendant and Respondent.

 

No. A128664.

(Alameda County Super. Ct. No. RG8390302).

June 29, 2011.

 

Michael H. Giacinti, Parton Sell Rhoades, San Rafael, CA, for Plaintiff, Cross-defendant and Appellant.

 

William Francis Burns, Pleasanton, CA, for Defendant, Cross-complainant and Respondent.

 

HAERLE, Acting P.J.

I. INTRODUCTION

Following a bench trial on RGW Construction, Inc.’s (RGW) complaint and Bar Tractor Company’s  (BTC) cross-complaint, both of which asserted claims for breach of contract among other things, the trial court determined that each party should pay money it owed to the other, with a net award to RGW of $17,986.67. The court also determined that RGW was the prevailing party for purposes of awarding costs under Code of Civil Procedure section 1033 and ordered that each party would bear its own attorney fees. RGW contends the trial court erred in denying recovery of its attorney fees. We will affirm.

 

In its cross-complaint, Bar Tractor Company avers that it was erroneously sued as Bar Tractor, Inc. There is no indication in the record as to why this error was never corrected.

 

II. FACTUAL AND PROCEDURAL BACKGROUND

RGW filed a complaint against BTC in Alameda County Superior Court on June 2, 2008, alleging, inter alia, breach of contract arising from unpaid sums for equipment repair services RGW provided to BTC’s fleet of tractors and earth-moving equipment. On November 19, 2008, BTC answered the complaint and filed a cross-complaint for, inter alia, breach of contract arising from unpaid sums for the rental of tractors and earth-moving equipment to RGW. Both the complaint and the cross-complaint sought an award of attorney fees. The matter proceeded to a bench trial on January 26, 2010.

 

At trial, evidence was presented that BTC and RGW had conducted business together for approximately 15 years. BTC operated a rental fleet of heavy equipment for the construction industry. It rented equipment to RGW’s construction division. BTC, which was owned by Bill and Gloria Rose, ceased operations in early 2007.

 

RGW is a construction company with a construction division and an equipment service division. RGW’s equipment service division provided repair and maintenance services for BTC’s heavy construction and earth-moving equipment. RGW’s Vice President of Equipment is Dane Lowry.

 

The parties submitted a written stipulation of facts for purposes of trial. The stipulation effectively provided that the principal amount of RGW’s outstanding invoices totaled $110,817.30, and that RGW acknowledged a $16,091.69 credit due for rental of a compactor, for a net principal claim of $94,725.61. RGW sought to recover principal and interest at 1.5 percent per month (18 percent), for a total amount of $137,487.25. The stipulation also effectively provided that BTC had 13 unpaid invoices outstanding to RGW, totaling $102,164.55, of which RGW contested the sum of $6,030 for three partially disputed invoices. The stipulation specified that there was a dispute as to when interest began to accrue on the agreed-upon amounts due to each party.

 

The case was tried over a two-day period, during which the parties put on evidence regarding the parties’ business relationship, how they conducted business with each other, the interactions between the parties in resolving the amounts due on their respective invoices to each other, and the intent of the parties during that process to mutually resolve the accounts.

 

At the conclusion of the trial, the court made findings of fact in determining whether the amounts claimed were legally liquidated or unliquidated for the purposes of applying an offset and accruing interest. The court found that RGW was entitled to the principal amount plus interest 30 days from the date of its invoices and that interest was proper at 10 percent. Regarding BTC’s claims, the court found that BTC was entitled to the amounts it claimed due under its 13 invoices, but that interest (also at 10 percent) did not begin to accrue until 10 days after March 23, 2009, i.e., the date the 13 invoices were produced to RGW in discovery. The court found that RGW did not receive the invoices when BTC claimed to have sent them originally in February 2007. Thus, although the principal amount due to BTC slightly exceeded the principal amount due to RGW, the accrual of interest on the RGW invoices provided RGW a net recovery of $17,986.67. These findings and determinations are not at issue in this appeal.

 

As pertinent to RGW’s claim for attorney fees, the undisputed evidence at trial showed a standard procedure consistently used by the parties: when BTC needed service on a piece of equipment, it would contact RGW by telephone. RGW would send over a technician to provide the necessary parts and service. After the service was completed, RGW would send BTC an invoice that itemized the hours of labor and the cost of the parts provided.

 

Since at least 2002, RGW’s invoices had been issued on a preprinted form that contained a signature line under the total amount due, and the following language at the bottom of each invoice: “Please pay from this invoice. Our terms are net 30 days. A 1 1/2% per month service charge (18% per annum) will be charged on all accounts past due. Customer agrees to pay for all court costs and attorney’s fees for the obligation herein in the event litigation ensues for collection of same.”

 

At times, BTC fell behind on paying RGW’s invoices. On several occasions over the years, Ms. Rose of BTC and Mr. Lowry of RGW met and discussed unpaid RGW invoices. If there was disagreement about the cost of services rendered by RGW, the two would work out the issue, agree upon the amount due, and BTC would issue RGW a check for that amount. During these meetings, Ms. Rose and Mr. Lowry discussed only unpaid invoices of RGW; they did not discuss any invoices issued by BTC. It was undisputed that RGW never charged BTC interest (i.e., the one and one-half percent per month “service charge”) on invoice amounts that remained unpaid for more than 30 days. Nor were those invoices signed by anyone at BTC. It was also undisputed that the parties never expressly discussed recovery of attorney fees in the event of litigation to collect unpaid invoice amounts.

 

The trial court found that RGW invoiced regularly and timely, expected payment within 30 days, and that invoiced amounts became due and owing 30 days after the date of each invoice. The court also found that the parties did not intend their agreement to include the terms of interest shown on the invoices or the provision for attorney fees stated on RGW’s invoices, and that those terms were not operative. These findings were the basis for the court’s award to RGW of principal and interest, and its denial of RGW’s claim for attorney fees.

 

RGW made a timely request for a new trial and for judgment notwithstanding the verdict. Both of these motions addressed the trial court’s denial of attorney fees. At the hearing, the court engaged in a lengthy colloquy with counsel, made findings from the bench, and denied both motions.

 

RGW filed a timely notice of appeal.

 

III. DISCUSSION

The only issue in this appeal is RGW’s claim for attorney fees. The trial court determined that RGW was the prevailing party for purposes of costs, but declined to award attorney fees. The court rejected RGW’s contention that it was entitled to attorney fees as stated in the invoices it sent to BTC over the years and RGW’s assertion that mutual assent should be inferred from the parties’ history and course of dealing. RGW seeks modification of the judgment to include an award of attorney fees and remand to the trial court for a determination of the amount.

 

A. Standard and Scope of Review.

The parties disagree about the applicable standard of review. RGW contends the issue of entitlement to attorney fees is subject to de novo review because the underlying facts were undisputed. BTC asserts that the trial court’s determination was based on its resolution of disputed factual matters, which are reviewed for substantial evidence. In the alternative, BTC suggests that the trial court’s decision to deny attorney’s fees could have been predicated upon the discretionary authority provided under Code of Civil Procedure section 1033, in which case review would be for abuse of discretion.

 

1. Principles of Contract Interpretation.

Every contract requires mutual assent or consent. (Civ.Code, §§ 1550, 1565; Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049 (Marin Storage ).) In oral, as in written, contracts, “[t]he fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.” ( Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; Morey v. Vannucci (1998) 64 Cal.App .4th 904, 912.) That mutual intent is determined by “ ‘objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.’ “ ( People v. Shelton (2006) 37 Cal.4th 759, 767.) “The question is what the parties’ objective manifestations of agreement or objective expressions of intent would lead a reasonable person to believe.” ( Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)

 

“[O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing. [Citations.]” ( Marin Storage, supra, 89 Cal .App.4th at p. 1049.) However, “[a]n exception to this general rule exists when the writing does not appear to be a contract and the terms are not called to the attention of the recipient. In such a case, no contract is formed with respect to the undisclosed term. [Citations.]” (Id., at pp. 1049–1050.)

 

Here, the parties contracted orally with each other, both when BTC contacted RGW for service and when RGW contacted BTC to rent equipment; they later sent invoices. There is no dispute that the parties never discussed entitlement to attorney fees when they arranged for service over the telephone or at any other time. Thus, extrinsic evidence is necessary to discern the parties’ mutual intent.

 

The relevant extrinsic evidence consists of the invoices RGW sent to BTC and the history and business dealings between the parties. There is no dispute over the evidence itself. The issue is what inference should be drawn from the evidence.

 

A trial court’s resolution of a disputed factual issue is ordinarily reviewed for substantial evidence. ( Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) Where the critical issue is what inference  should be drawn from the undisputed extrinsic evidence, as here, we follow the well established rule of conflicting inferences: “ ‘Where different inferences may reasonably be drawn from undisputed evidence, the conclusion of the jury or trial judge must be accepted by the appellate court.’ “ ( Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at p. 633; see also Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 [summarizing the rule and collecting cases].) Accordingly, we will review the trial court’s determination of the parties’ intent for substantial evidence.

 

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid.Code, § 600, subd. (b) .)

 

Under the substantial evidence standard, “we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] … Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. [Citations.]” ( Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630–631.)

 

RGW argues that the appropriate standard of review is de novo because the extrinsic evidence was not in conflict, but cites no authority in support of its position. RGW then proceeds to discuss contract principles and the appropriate review standards for written agreements, citing repeatedly to Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515. (AOB 7–9) The problem with this entire section of RGW’s brief is that the contract here is oral, not written, and Bill Signs Trucking, which involved the interpretation of a commercial real estate lease, is inapposite. (See Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 632–633; cf. Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861 [appellate court construing a written instrument independently determines the parties’ intent based on inferences from undisputed evidence].)

 

2. Statement of Decision.

BTC contends that RGW is bound by the presumption that the trial court made the necessary findings to support its decision because RGW did not request a statement of decision. The doctrine of implied findings requires an appellate court to infer that the trial court made all factual findings necessary to support the judgment, so long as substantial evidence supports those findings. ( SFPP v. Burlington Northern & Santa Fe Railway Co. (2004) 121 Cal.App.4th 452, 462 (SFPP ); Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942.) In order to assert on appeal that a trial court erred in making or failing to make factual findings, a party must (1) request a statement of decision and (2) bring any ambiguities or omissions to the trial court’s attention in a timely manner. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe ).)

 

Code of Civil Procedure section 632 states in part: “The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”

 

In its trial brief, filed prior to submission of the case, RGW requested a statement of decision. Although the timing of the request was proper if, as we are informed by RGW, the total time for the trial was less than eight hours, the request itself did not specify any particular issues to be addressed. Section 632 is explicit and clear that the request “shall specify those controverted issues as to which the party is requesting a statement of decision.” (Code Civ. Proc., § 632, emphasis added.) Having failed to specify that the statement of decision should address any particular issues, RGW is deemed to have waived its right to object that the trial court failed to make any particular findings. ( City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292–1293; Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 709–711 [a general, nonspecific request for a statement of decision does not operate to compel a statement of decision as to all material, controverted issues].)

 

RGW informs us that trial took “less than eight hours,” while BTC asserts that RGW’s request was “premature.”

 

Moreover, upon submission, the trial court issued its findings and order from the bench. The court engaged in a discussion with counsel, and clarified or expanded upon certain findings, but at no time did RGW’s counsel mention a statement of decision. We conclude that RGW waived the request by not renewing it. (See, e.g., In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109 [request for a statement of decision waived by not renewing the request].)

 

Finally, it is unclear whether the trial court’s comments at the conclusion of the trial were intended as an oral statement of decision. In any event, in light of the absence of an effective request for a statement of decision, we will imply any factual findings necessary to support the judgment where those findings are supported by substantial evidence. ( SFPP, supra, 121 Cal.App.4th at p. 462.)

 

B. Trial Court’s Ruling.

Upon submission of the matter, the trial court issued its findings and decision from the bench. With respect to the right to recover attorney fees, the court stated, “Despite the wording that’s preprinted on the invoices, it seems clear to me from the testimony of all the witnesses involved that both parties kind of operated open-book accounts here. That they did not observe any of the terms or conditions that included the assessment of interest, never discussed the expectation of attorneys fees. That this was like I said more like an open account and at both ends done orally with documentation to follow, in some cases followed quite a passage of time later….

 

“Now, since I don’t believe the term of interest shown on both invoices was the intended parties [sic], nor did I hear any evidence of any discussion about attorneys fees or anything about that, I don’t believe those terms or either invoice—I understand the attorney fees was only on the RGW invoice. I don’t think those were operative. That was not the intent of the parties.”

 

RGW’s counsel raised the issue of a post-trial motion on attorney fees, to which the court responded:

 

“The Court: Well, I understand your argument. It’s there on the invoice. We’re entitled to it. That’s your argument. [¶] What I’m saying is the fact that was the form they used to record what they had and how they had interacted, I don’t think it was operative because that was not the intent of the parties. That’s not how they dealt with each other. The invoice itself was more of a recordation of what had transpired orally between the parties. [¶] Putting it in afterwards and saying now this is subject to attorneys fees, I don’t think it was ever a meeting of the minds on that. I don’t think there was ever any contract to that effect that they had agreed on the rate. The dispatcher would call up and get the rate, here’s what the charge is. Okay, send it over. They send it over. Down the road they send them then this invoice and it happen[s] to be on the invoice. [¶] That’s what I’m saying. I don’t think it was a material term of a contract of a relationship with the parties. The parties more operated in kind of an open-book account. I just don’t see it as operative.

 

“Mr. Sell [counsel for RGW]: I would like the opportunity to address it again. I’m just looking at the vehicle to do it. Do I do it now?

 

“The Court: Well, I think you’ve made your record, okay. I think—I understand your argument. You say it’s in the invoice, I’m entitled to it. You think the invoice is the contract between the parties, but I don’t. I don’t think that record reflects the relationship between the parties. It’s more akin to an open-book account, so I don’t think doing the do [sic] is going to change that .”

 

C. Attorney Fees.

The facts regarding the business relationship between RGW and BTC were undisputed, including the conduct of the parties with respect to business transactions, invoicing, and payment. RGW contends that the undisputed facts before the trial court established that the attorney fees provision of the RGW invoices was part of the agreement between the parties.

 

RGW focuses its briefing on the trial court’s observation that the parties did not actually discuss the attorney fees provision in the invoices and contends that the trial court erroneously based its decision on this point. RGW points out that “actual negotiation regarding every term has never been required for the formation of a contract. The existence of mutual assent is determined by objective criteria, not by one party’s subjective intent.” ( Marin Storage, supra, 89 Cal.App.4th at p. 1050.) Although the trial court mentioned this point in its findings from the bench, we disagree with RGW’s characterization of this comment as the principal basis for the court’s finding that the parties’ agreement did not include attorney fees. In accordance with our standard of review, we will infer that the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment. ( Fladeboe, supra, 150 Cal.App.4th at p. 60.)

 

In any event, according to RGW, BTC’s assent to the terms of RGW’s invoices can be inferred from its extensive dealings with RGW over the course of several years during which it received numerous RGW invoices on the same pre-printed form, had ample opportunity to review them, and paid them without objection.

 

RGW relies principally on Marin Storage, a case involving indemnification terms in an agreement between a general contractor (Benco) and a crane company (Reliable). In accordance with their course of dealing, Benco arranged over the telephone for Reliable to provide crane services on the date in question; at the end of the day, Reliable’s crane operator filled out a form indicating hours worked and presented the form to Benco’s on-site supervisor who verified the hours and signed the form. The form consistently used by Reliable was entitled “Work Authorization and Contract.” At the bottom of the form, just above the signature line, was the statement: “ ‘This is a contract which includes all terms and conditions stated on the reverse side.’ “ Included in the terms on the back of the form were three that pertained to indemnification. ( 89 Cal.App.4th at pp. 1046–1047.) Following an accident at the job site and a lawsuit, Reliable sought indemnification for its attorney fees. The trial court found that the document, although labeled a contract, had the appearance of an invoice and served merely to acknowledge the hours worked. The court concluded, inter alia, that the terms on the back of the form were unenforceable as lacking mutuality of assent. ( 89 Cal.App.4th at pp. 1048–1049.)

 

A course of dealing is “a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” (Com.Code, § 1303, subd. (b).)

 

On appeal, our colleagues in Division Five of this District reversed for two main reasons. First, the document clearly indicated on its face that it was a contract and referred to the terms on the reverse side. “There [was] simply no basis for a conclusion that the document was unrecognizable as a binding contract. [Citations.]” ( Marin Storage, supra, 89 Cal.App.4th at p. 1050.) Second, the parties’ course of dealing, “conducted over many years and numerous hirings, establish[ed] that the oral agreement to hire included the terms contained in the Work Authorization and Contract.” (Id. at p. 1051.)

 

Although there are obvious similarities between Marin Storage and the instant case, the factual differences support a different result. The Marin Storage document “ ‘clearly’ indicated on its face that it was a contract.” ( 89 Cal.App.4th at p. 1050.) By contrast, RGW’s form is titled “Invoice” and does not state anywhere that it is a contract. Just above the signature line on the Marin Storage form was the statement: “ ‘This is a contract which includes all terms and conditions stated on the reverse side.’ “ ( 89 Cal.App.4th at p. 1047.) By contrast, just above and aligned with the signature line on the RGW invoices, is the total amount due for labor and parts. The statement about attorney fees is at the bottom of the form, centered, and in smaller print.

 

The forms were also used differently by the parties. In Marin Storage, the Benco supervisor signed the Work Authorization and Contract at the time services were rendered. The form clearly advised the supervisor that he or she was contracting with Reliable under the stated terms. Subsequently, a copy of the signed form was sent by Reliable to Benco with the invoice for billing purposes. ( 89 Cal.App.4th at p. 1047.) In the instant case, there was no evidence of any documentation changing hands; the RGW invoices were not presented for approval and signature at the time the equipment was serviced. Indeed, the invoices were never signed by anyone at BTC.

 

Marin Storage relied on Insurance Co. of North America v. NNR Aircargo Service (9th Cir.2000) 201 F.3d 1111 (NNR Aircargo ), as does RGW, for the principle that invoice terms may supplement a prior agreement where there is a sufficient course of dealing between the parties to infer common understanding of the agreement. In NNR Aircargo, Dunlop hired NNR to ship golf balls from Japan to the United States. While still in transit, part of the cargo was stolen from NNR’s Los Angeles warehouse. Two weeks later, Dunlop received an invoice for NNR’s shipping services that was identical in its terms and conditions to the invoices sent by NNR numerous times for previous transactions between the parties. The front of the invoice stated: “ ‘NNR handles shipments subject to the terms and conditions set forth on the reverse side of this invoice.’ “ The eighth paragraph on the back contained the key term, limitation of liability to $50 per shipment unless the customer and NNR agreed in advance to a different arrangement. (Id. at p. 1112.) Insurance Company of North America (INA), Dunlop’s insurer, sued NNR seeking recovery of the approximately $257,000 it paid to Dunlop. The district court granted NNR’s summary judgment motion limiting NNR’s liability to $50. (Id. at p. 1113.)

 

On appeal, INA argued, inter alia, that it should not be held to the liability limit of $50 because that term was not a part of Dunlop’s oral agreement with NNR. ( NNR Aircargo, supra, 201 F.3d at p. 1113.) In rejecting INA’s position, the court explained: “Liability is a term inherent to shipping contracts. [Citation.] We have thus tacitly approved the use of a course of dealing analysis in interpreting such contracts where the agreement is silent with respect to liability. [Citation.] Today we rule that invoice terms and conditions may supplement shipping agreements if there has been a sufficient course of dealing and thereby, find that INA is subject to the terms and conditions of the invoice for the stolen golf balls.” (Ibid.) Prior to the loss, Dunlop had contracted with NNR on 47 occasions and had received 47 identical invoices over a period of three years, a sufficient course of dealing to put Dunlop on notice of the terms and conditions contained therein. (Id. at p. 1114.)

 

NNR Aircargo is distinguishable for at least three reasons. First, the holding is expressly limited to shipping contracts, and RGW has identified no California case citing NNR Aircargo with approval in any other context. Second, the issue in that case was the allocation of the risk of loss, a term inherent to shipping contracts, as noted by the court. Liability for attorney fees, by contrast, is not inherent to the type of agreement between RGW and BTC.

 

Third, the “germane inquiry” in NNR Aircargo was “whether Dunlop’s receipt of 47 identical invoices for 47 separate transactions [was] sufficient to constitute a course of dealing.” In concluding that this volume of transactions over a period of three years “put Dunlop on notice of the terms and conditions contained in [the invoices],” the NNR Aircargo court equated a course of dealing with having notice of the terms contained in the invoices. Thus, the NNR Aircargo court concluded that the liability limit term of the invoice supplemented the shipping agreement. ( NNR Aircargo, supra, 201 F.3d at p. 1114.)

 

Here, the course of dealing involved more than identical form invoices sent by RGW and paid by BTC over a period of several years. The evidence also showed a process the parties used for addressing payment issues related to RGW’s invoices. Party principals Lowry of RGW and Rose of BTC both testified that they would meet in-person to resolve issues related to past-due RGW invoices, and that such meetings took place several times over the years:

 

“[RGW’s counsel]: Now, in your past dealings with RGW service division Dane Lowry would go to your office and sit down with you and discuss reconciliation of payment of RGW service invoices, correct?

 

“[Gloria Rose] “Yes.

 

“Q. And Dane would call you first and then head over to your office to discuss payment of RGW service invoices, correct?

 

“A. Yes.

 

“Q. And these meetings happened on more than one occasion, true?

 

“A. A couple of times, yes.

 

“Q. As many as over five times over the years, correct?

 

“A. Perhaps over the last 10 years.

 

“Q. There was never a situation where you would contact Mr. Lowry to initiate one of these meetings, was there?

 

“A. No.

 

“Q. He was the one always calling you?

 

“A. Correct.

 

“Q. All right. And the two of you would—he’d go over to your office. The two of you would sit down. You would discuss the service invoices, work them out, and then you would send him a check shortly thereafter, correct?

 

“A. Yes. It was—it was just a small meeting. It didn’t last very long. We’d usually want to go over a few of them, give them to me in case I needed to get another copy. It wasn’t a big meeting.”

 

“[RGW’s counsel]: In between 2000 and 2007 was BAR Tractor timely in paying RGW invoices?

 

“[Dane Lowry]: They were late paying.

 

“Q. Would you and Ms. Rose meet from time to time to discuss these invoices?

 

“A. Yes.

 

“Q. Who would initiate these meetings?

 

“A. I would call Gloria and initiate the meeting.

 

“Q. Did Mr. Rose ever participate in these meetings?

 

“A. No.

 

“Q. What would happen with—during those meetings with Gloria Rose?

 

“A. We would go over the RGW service invoices, and if there was anything that was wrong or needed to be adjusted I adjusted it at that time and took care of it and she paid the bill.

 

“Q. And how often [would] these meetings occur?

 

“A. Twice a year.”

 

In addition, it was undisputed that RGW never sought to impose the 18 percent interest rate on past-due amounts. Here, the trial court concluded that the parties’ common understanding based upon their prior conduct was that payment issues would be dealt with informally, in person, and that neither the 18 percent interest rate nor the attorney fees provision stated on the invoices was an operative term of the parties’ agreement. This inference is amply supported by the record. Although the inference urged by RGW, that BTC’s assent to the terms of RGW’s invoices can be inferred from the extensive business dealings of the parties, might also be objectively reasonable, we have no power to substitute one reasonable inference for another. ( Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at p. 633; Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)

 

In light of this determination, we need not address BTC’s alternative argument under Code of Civil Procedure section 1033.

 

IV. DISPOSITION

The judgment is affirmed.

 

We concur: LAMBDEN and RICHMAN, JJ.