Trustees of the Michigan Laborers’ Health Care Fund v. Michael Gibbons; William Gibbons; Gibbons Brothers Masonry

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0128P (6th Cir.)
File Name: 00a0128p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TRUSTEES OF THE M ICHIGAN
LABORERS’ HEALTH C ARE
FUND ; M ICHIGAN LABORERS’
DISTRICT C OUNCIL P ENSION
FUND ; M ICHIGAN LABORERS’
VACATION FUND ; M ICHIGAN
LABORERS’ TRAINING FUND ;
C ONSTRUCTION INDUSTRY
ADVANCEMENT FUND ,
Plaintiffs-Appellants,
v.
M ICHAEL GIBBONS; W ILLIAM
GIBBONS; GIBBONS
BROTHERS M ASONRY ,
Defendants-Appellees.
;>

1
No. 98-1975
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71315—Bernard A. Friedman, District Judge.
Argued: November 5, 1999
Decided and Filed: April 7, 2000

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2 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
*The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
Judge; KATZ,* District Judge.
_________________
COUNSEL
ARGUED: Christopher P. Legghio, MARTENS, ICE,
GEARY, KLASS, LEGGHIO, ISRAEL & GORCHOW,
Southfield, Michigan, for Appellants. Michael J. Olson,
KIZER LAW FIRM, Howell, Michigan, for Appellees.
ON BRIEF: Kenneth J. Fiott, CAMERON MILLER &
ASSOCIATES, Plymouth, Michigan, for Appellants.
Thomas J. Kizer, KIZER LAW FIRM, Howell, Michigan, for
Appellees.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiffs here are trustees of various employment benefit
funds established by collective bargaining agreements
between construction-industry employer associations and
unions representing their employees. They filed suit pursuant
to § 515 of the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. § 1145 (1994), against the
defendants, Michael Gibbons, William Gibbons, and Gibbons
Brothers Masonry, seeking recovery of unpaid contributions
and other equitable relief. Following cross-motions for
summary judgment, the district court denied the plaintiffs’
motion and granted summary judgment to the defendants,
finding that the plaintiffs were equitably estopped from
recovering fringe benefits under the circumstances of this
case. The plaintiffs appeal, assigning as error only the grant
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
15
defendants’ ERISA liability, to order the defendants to permit
the requested audit of their books, and to further determine
those monies due to the Trustees.

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14 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
is not a case in which the parties have not had a chance to
dispute facts material to the plaintiffs’ claim, see Fountain v.
Filson, 336 U.S. 681, 683 (1949); indeed, the defendants
acknowledged in their motion for summary judgment that no
genuine issue of material fact existed. The undisputed facts
show that the defendants have failed to make contributions to
the trust funds in question according to the terms of valid
collective bargaining agreements, in so doing violating § 515
of ERISA. We have examined the record below and find no
merit to any of the defendants’ asserted legal defenses to their
duties under the agreements. We therefore remand this case
to the district court to order partial summary judgment to the
Trustees, oversee the audit of the defendants’ record, and
determine what award of unpaid contributions and other
damages, if any, is due to the Trustees acting on behalf of the
ERISA funds.
CONCLUSION
In this case the defendants, engaged in the construction
industry for at least the last 15 years, claim ignorance of their
obligations to ERISA trust funds and seek to estop plaintiffs
from enforcing these obligations. As a matter of policy, we
think that equitable estoppel of third party enforcement of
collective bargaining agreements governed by ERISA may
well conflict with Congress’s objectives in enacting ERISA,
i.e., that establishment of employee benefits funds by such
plans be in writing and that the funds’ fiscal health remain
secure. Even if estoppel should be available to defendant
employers in some cases, in order for these defendants to
estop the plaintiffs from enforcing the collective bargaining
agreements at issue here, all the elements of this circuit’s
common law test must have been established. We conclude
that, as a matter of law, the defendants cannot establish all the
elements of equitable estoppel on these facts. Because the
district court erred in ruling that the defendants made such a
showing, we hold that the district court’s judgment must be
REVERSED. We direct the district court on remand to enter
partial summary judgment for the Trustees as to the
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
3
of summary judgment to the defendants. Because we
conclude that the district court erred in its application of the
five-part test developed by this court in Apponi v. Sunshine
Biscuits, Inc., 809 F.2d 1210 (6th Cir. 1987), and reiterated in
Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir. 1991),
we find it necessary to reverse the judgment of the district
court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants Michael and William Gibbons, doing business
as Gibbons Brothers Masonry, are contractors in the
construction industry. Between 1986 and 1990, the
defendants entered into collective bargaining agreements with
various local chapters of the State of Michigan Laborers’
District Council of the Laborers’ International Union of North
America. The agreements required the defendants to
contribute specific sums of money to several employee
pension and welfare benefit funds governed by ERISA.
These funds, the trustees of which are plaintiffs here, included
the Michigan Laborers’ Health Care Fund; the Michigan
Laborers’ District Council Pension Fund; the Michigan
Laborers’ Vacation Fund; the Michigan Laborers’ Training
Fund; and the Construction Industry Advancement Fund.
Each agreement also included an “evergreen” clause,
automatically renewing the agreement each year unless a party
to the agreement submitted written notice of intent to
terminate or amend at least 60 days before the agreement’s
expiration date.
In 1990, an audit of the defendants’ payroll records
indicated that the defendants owed thousands of dollars in
unpaid contributions to the Funds. After protracted
negotiations over payment of these monies failed, in 1991
plaintiffs filed a lawsuit under ERISA’s civil enforcement

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4 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
1Section 515 of ERISA states:
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the extent
not inconsistent with law, make such contributions in accordance
with the terms and conditions of such plan or such agreement.
29 U.S.C. § 1145 (1994). ERISA requires courts to award parties
victorious in actions pursuant to § 515 unpaid contributions and accrued
interest, liquidated damages, attorneys’ fees and costs, and “such other
legal or equitable relief as the court deems appropriate.” 29 U.S.C.
§ 1132(g).
provisions to recover the unpaid amount.1 The district court
entered a default judgment against the defendants for
approximately $70,000, covering the plaintiffs’ claims
through September 1990. The defendants’ business and
personal bank accounts were garnished to satisfy the
judgment.
After the 1991 judgments, the defendants made no further
payments into the Funds. In 1994, an auditor for the Funds,
Dawn Aldrich, contacted the defendants by mail and by phone
requesting access to payroll records in order to perform
another audit. At that time defendant William Gibbons
informed Aldrich of his belief that the 1991 judgment
terminated the collective bargaining agreements. Aldrich,
whose office had received no report confirming that the
agreements had been terminated, told Gibbons that she “was
sure that he had agreements” with the union requiring
continued payments into the Funds.
Both Aldrich and Gibbons expressed an intent to check
their files to ascertain the status of the agreements.
Nevertheless, no contact occurred between the parties until
September 1996, when Aldrich again attempted to schedule
an audit with the defendants. They refused to permit the
audit, and the trustees filed another complaint, this time
seeking an order to compel the audit and to enforce the
defendants’ obligations to make contributions to the Funds.
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
13
5We have not hesitated in the past to assert this power when
appropriate by directing an order of summary judgment to a party
appealing the grant of the same to an adversary, see Garner v. Memphis
Police Dep’t, 8 F.3d 358, 366 (6th Cir. 1993), and now join those
appellate courts that have done so even where the losing party below did
not argue on appeal for a grant of summary judgment. See, e.g., Fabric
v. Provident Life & Accident Ins. Co., 115 F.3d 908, 914-915 (11th Cir.
1997); O’Neill v. Continental Airlines, Inc. (In re Continental Airlines),
981 F.2d 1450, 1458-59 (5th Cir. 1993); Dickeson v. Quarberg, 844 F.2d
1435, 1444 n.8 (10th Cir. 1988); Martinez v. United States, 669 F.2d 568,
570 (9th Cir. 1982); Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593,
600 (7th Cir. 1972); First Nat’l Bank v. Maryland Cas. Co., 290 F.2d
246, 251-52 (2d Cir. 1961).
silence by a party who claims not to have known where
defendant was or whether or not defendant was infringing”).
We hold that the district court erred in concluding that the
Trustees should be estopped from enforcing the agreements
for either the period between the 1991 judgment and the 1994
Aldrich-Gibbons communications or the period since those
communications, and that the order incorporating this
estoppel must be reversed. We note that the Trustees do not
appeal the district court’s denial of their summary judgment
motion; nevertheless, after careful review of the record, we
believe a grant of summary judgment as to the defendants’
ERISA liability is appropriate now. We have jurisdiction to
review the court’s denial of summary judgment, often not
appealable as an interlocutory decision, because it has merged
into the final judgment in the case. See, e.g., Santaella v.
Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
We have the discretion to so direct an alternative order of
judgment pursuant to 28 U.S.C. § 2106, which allow federal
appeals courts to “affirm, modify, vacate, set aside or reverse
any judgment, decree, or order of a court lawfully brought
before it for review,” and to “remand the cause and direct the
entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just
under the circumstances.”5 Our direction to the district court
to order summary judgment is appropriate here because this

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12 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
348, 749 F.2d at 319; see also Sprague v. General Motors
Corp., 133 F.3d 388, 404 (6th Cir.) (en banc), cert. denied,
118 S.Ct. 2312 (1998) (“[R]eliance can seldom, if ever, be
reasonable or justifiable if it is inconsistent with the clear and
unambiguous terms of plan documents available to or
furnished to the party.”). Similarly, the defendants here either
were or should have been aware of their obligations under the
written agreements, if by no other means than the first,
successful recovery action against them. They cannot claim
justifiable reliance on the equivocal statements and ensuing
delay of an auditor in attempting to escape their
responsibilities now.
The lack of soundness in the district court’s estoppel
analysis is epitomized by its holding that the plaintiffs should
be estopped from enforcing the agreements from the time of
the 1991 judgment onward. Even if Aldrich’s conduct could
be said to estop plaintiffs from enforcing the agreements after
Aldrich’s communications with William Gibbons in April
1994, it should be obvious that the plaintiffs could not be
estopped from collecting unpaid contributions for the period
before the Aldrich-Gibbons conversation, from September
1990 to April 1994. As we have previously indicated, the
agreements clearly directed the defendants to make monthly
payments into the Funds. The 1991 judgment itself should
have put the plaintiffs on notice as to their obligations to the
Funds. See Michigan Laborers’ Health Care Fund v.
Grimaldi Concrete, Inc., 30 F.3d 692, 695 (6th Cir. 1994).
The record is utterly devoid of any evidence that the plaintiffs
engaged in conduct at the time of the 1991 default judgment
that could work to misrepresent defendants’ duties to continue
making payments. The mere fact of the plaintiffs’ silence
between the judgment and April 1994, without more, cannot
be grounds for estoppel. See Watkins v. Northwestern Ohio
Tractor Pullers Ass’n, Inc., 630 F.2d 1155, 1160 (6th Cir.
1980) (holding in patent infringement action that “[f]or
silence to work an estoppel, it must be sufficiently misleading
to amount to an estoppel. . . . [a]t most, the record shows
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
5
In this second lawsuit, the instant case, both the plaintiffs
and the defendants moved for summary judgment on the issue
of the defendants’ liability to the funds. Both parties argued
that there were no genuine issues of material fact. The
defendants, for their part, insisted that the plaintiffs should be
prevented from enforcing the agreements under the equitable
doctrines of laches and estoppel and that the agreements
themselves were void due to fraud in the execution. At the
hearing on the motions, the district court denied summary
judgment to the plaintiffs and held for the defendants,
referring to both laches and equitable estoppel as grounds for
denying the plaintiffs’ prayer for relief. In its opinion denying
the plaintiffs’ later motion for reconsideration, the court held
that the plaintiffs should be estopped from enforcing the
collective bargaining agreements because the defendants had
shown all the elements of equitable estoppel required by this
court. The plaintiffs appeal from this order.
DISCUSSION
We review a district court’s grant of summary judgment de
novo. See Tregoning v. American Community Mut. Ins. Co.,
12 F.3d 79, 81 (6th Cir. 1993). We may affirm the decision
below only if we determine that the pleadings, affidavits, and
other submissions show “that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). All
inferences drawn from the submissions to the court must be
viewed in the light most favorable to the non-movant. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). Summary judgment is inappropriate
if “the evidence is such that a reasonable jury could return a
verdict for the [nonmovant].” Sowards v. London County,
203 F.3d 426, 431 (6th Cir. 2000) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Well over a century ago, the Supreme Court held that the
beneficiary of a contract may be estopped from enforcing that
contract when he has “by his representations or his conduct

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6 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
induced the other party . . . to give him an advantage which it
would be against equity and good conscience for him to
assert.” Insurance Co. v. Wilkinson, 80 U.S. 222, 233 (1871).
The Sixth Circuit has followed the nation’s highest court in
requiring that such representations must contain an element
of fraud, either intended deception or “such gross negligence
. . . as to amount to constructive fraud.” Brant v. Virginia
Coal and Iron Co., 93 U.S. 326, 335 (1876); see also TWM
Mfg. Co., Inc. v. Dura Corp., 592 F.2d 346, 350 (6th Cir.
1979) (requiring a showing of either “misrepresentations,
affirmative acts of misconduct, or intentionally misleading
silence” to establish estoppel). Fraudulent conduct alone is
not enough, however; the party asserting estoppel must not
know the truth behind the other party’s representations, see
Heckler v. Community Health Servs., 467 U.S. 51, 59 n.10
(1984), must reasonably rely on the other’s actions, see id. at
59, and must suffer substantial detriment as a result. See
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 323
(1936); see also Teamster’s Local 348 Health and Welfare
Fund v. Kohn Beverage Co., 749 F.2d 315, 319 (6th Cir.
1984) (“Estoppel requires a representation, to a party without
knowledge of the facts and without the means to ascertain
them, upon which the party asserting the estoppel justifiably
relies in good faith to his detriment.”).
The plaintiffs argue that equitable estoppel should not be
available as a defense in this case, because to claim that the
plaintiffs’ agent’s oral representations and silence worked to
estop enforcement of the collective bargaining agreements
would contravene ERISA’s mandate that benefit plans must
be in writing, so that beneficiaries may determine with
certainty exactly what rights and obligations the plan sets
forth. See Musto v. American Gen. Corp., 861 F.2d 897, 910
(6th Cir. 1988) (citing H.R. Rep. No. 93-1280 (1974),
reprinted in 1974 U.S.C.C.A.N. 5038, 5077-78). We find it
unnecessary, however, to decide whether or not equitable
estoppel should generally be available as a defense to
contribution recovery actions, because in this case the
defendants cannot establish a basis to estop recovery.
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
11
S.W.2d 942, 948 (Tex. Civ. App. 1974) (stating that “[i]n no
event can an estoppel arise in favor of one who has been
guilty of contributory negligence” and citing Sheffield Car
Co. v. Constantine Hydraulic Co., 137 N.W. 305 (Mich.
1912)).
As for the final factor, detrimental, justifiable reliance by
the party asserting estoppel, the district court never
articulated, either in the hearing on the parties’ motions for
summary judgment or in its opinion denying plaintiffs’
motion for reconsideration, how the defendants’ reliance on
the conduct of the plaintiffs and its agents was both
substantially detrimental and justifiable. The defendants
assert that they made other fringe benefit arrangements for
their employees after the 1991 judgment, and that to have to
pay monies into the Funds now would work a detrimental
change in position. But this purported reliance on plaintiffs’
conduct, in the face of the explicit terms of the agreements
establishing the defendants’ duty to make monthly payments
to the Funds, simply cannot be described as justifiable. The
defendants could reasonably have had no more than a mere
hope that Dawn Aldrich’s conduct, including her 1994
statements and ensuing delay in attempting to schedule an
audit, meant that the plaintiffs were not going to enforce the
defendants’ duty to make the monthly payments.
These facts resemble those at issue in Teamster’s Local
348, in which a union representative told non-union
employees of the defendant employer that they would not be
eligible for benefits from fringe benefit funds established by
prior collective bargaining agreements. The defendant
claimed that, because they relied on the union representative’s
statements and provided alternative benefits to the non-union
employees, the funds should be estopped from seeking
contributions under the agreements. The court held for the
plaintiff funds, stating that “[t]he estoppel defense fails
because [the defendant] had knowledge about the plans and
its obligations thereunder, and did not reasonably rely on [the
union representative’s] representations.” Teamster’s Local

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10 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
diligence he could acquire the knowledge so that it
would be negligence on his part to remain ignorant by
not using those means, he cannot claim to have been
misled by relying upon the representation or
concealment.
Community Health Servs., 467 U.S. at 59 n.10 (emphasis
added); see also Teamster’s Local 348, 749 F.2d at 319
(stating that, for estoppel to apply, representation must be
made “to a party without knowledge of the facts and without
the means to ascertain them”) (emphasis added). Gibbons
testified that he believed he received and retained copies of
the agreements after signing them. Dawn Aldrich testified
that Gibbons told her that he would check to see if he had
letters terminating the agreements. Gibbons thus apparently
had adequate means, through the agreements themselves, the
presence or absence of letters terminating the agreements, and
communication with union officials to acquire knowledge by
reasonable diligence as to whether the agreements were still
in effect. Many courts deciding contribution recovery cases
have held that an employer’s failure to read accessible
collective bargaining agreements defeats a claim of ignorance.
See, e.g., Audit Servs., Inc. v. Rolfson, 641 F.2d 757, 762 (9th
Cir. 1981) (“We have determined that the collective
bargaining agreement unambiguously called for the payment
of the contributions . . . . [e]ven if we could somehow find
that the trustees intended to mislead the defendants, and
nothing in the record indicates such an intent, we cannot agree
that the defendants were ‘ignorant’ of their responsibility
under the agreement.”); Chicago Dist. Council of Carpenters
Pension Fund v. Monarch Roofing Co., Inc., 601 F. Supp.
1112, 1117 (N.D. Ill. 1984) (holding no estoppel where
defendant “had ready access to [copies of the agreements,]
and thus had easy access to facts contrary to those on which
it might have relied”). The failure of the defendants in this
case to do so since 1991 could, without exaggeration, be
called contributory negligence. Certainly, the resulting
ignorance creates no basis for equitable estoppel. See El Paso
Nat’l Bank v. Southwest Numismatic Inv. Group, Ltd., 548
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
7
2ERISA authorizes the federal courts to fashion a body of federal
common law to enforce agreements governed by the statute. See
Armistead, 944 F.2d at 1298 (citing Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 403 (1988)).
In past ERISA cases involving a claim of equitable
estoppel, we have required a showing of five common-law2
elements:
1) conduct or language amounting to a representation of
material fact;
2) awareness of the true facts by the party to be
estopped;
3) an intention on the part of the party to be estopped
that the representation be acted on, or conduct toward the
party asserting the estoppel such that the latter has a right
to believe that the former’s conduct is so intended;
4) unawareness of the true facts by the party asserting
the estoppel; and
5) detrimental and justifiable reliance by the party
asserting estoppel on the representation.
Armistead, 944 F.2d at 1298 (citing Apponi, 809 F.2d at
1217). All of these elements must be present before the court
may order estoppel. We believe that no reasonable jury could
return a verdict finding that each of the factors was satisfied
here, and we therefore hold that the defendants’ equitable
estoppel argument fails as a matter of law.
In deciding for the defendants on the third equitable
estoppel factor, either an intention on the part of the party to
be estopped that its representation be acted upon or conduct
such that the party asserting estoppel “has a right to believe”
the party to be estopped so intends, see Armistead, 944 F.2d
at 1298, the district court found “that plaintiffs’ auditor’s

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8 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
No. 98-1975
3Aldrich testified:
A. To my knowledge we never received letters terminating the
agreements with the locals that he has signed signature pages
conduct gave defendants a right to believe plaintiffs would
not be pursuing further pension contributions.” (The court
did not make a finding that the plaintiffs intended defendants
should act upon Aldrich’s conduct.) Specifically, the court’s
order characterized Dawn Aldrich’s telling William Gibbons
that she would check her files regarding the collective
bargaining agreements and then neglecting to take further
action as conduct leading the defendants to believe that the
Trustees would not enforce the agreements. The definitional
language regarding the “rights” of the party claiming estoppel,
developed and adopted by many courts over the years, appears
to be an attempt to capture not only affirmative
misrepresentations or other misconduct, but also the “gross
negligence” the Supreme Court identified in Brant as grounds
for estoppel. Brant, 93 U.S. at 335; see also 28 Am. Jur. 2d
Estoppel and Waiver § 61 (1999) (tracing development of
common law equitable estoppel definition). Here, the
defendants apparently claim that Aldrich’s delay after sending
mixed messages as to her knowledge of the agreements’
validity constituted such gross negligence. Yet, to bring an
estoppel defense based on negligence, “it is not enough to
show that [a party] was careless. He must have been careless
in respect of some duty owing to the [defendant] or the
public.” People’s Trust Co. v. Smith, 109 N.E. 561, 562
(N.Y. 1915) (Cardozo, J.). The collective bargaining
agreements signed by the defendants created a duty to make
monthly payments into the Funds and established that the
plaintiffs would oversee those payments; they did not,
however, create a legal duty in the plaintiffs, as trustees for
the Funds, to the defendants to remind them of the need to
make payments. Nor did Aldrich’s conduct, in the face of
Gibbons’s assertions that he would check his records
regarding the agreements, create such a duty, or appear to us
to be otherwise grossly negligent.3 We therefore hold that, as
No. 98-1975 Trustees of the MI Laborers’ Health
Care Fund, et al. v. Gibbons, et al.
9
with.
Q. Could those letters exist without your knowledge?
A. Yes, they could.
Q. Are they likely to exist without your knowledge?
A. It’s possible. I asked him.
Q. You asked?
A. Mr. Gibbons.
Q. And what –
A. If he had letters.
Q. And he said no?
A. He said he wasn’t sure. He would have to check.
4The Trustees’ delay in bringing this action does not support a
finding of gross negligence. While a consideration of the appropriateness
of equitable estoppel in any case must be based upon the specific factual
circumstances of that case, other courts deciding contribution recovery
claims have found much longer delays no prohibition to enforcement.
See, e.g., Operating Eng’rs Pension Trust v. Cecil Backhoe Serv., Inc.,
795 F.2d 1501, 1507 (9th Cir. 1986) (seven years); Teamsters Local 251,
Health Servs. and Ins. Fund v. Teamsters Local 251, 689 F. Supp. 48, 52
(D.R.I. 1988) (20 years).
a matter of law, the defendants had no right to believe they
would be excused from further contributions to the funds.4
We find even more substantial deficiencies in the district
court’s analysis of the fourth and fifth equitable estoppel
factors. The court found “little doubt” that the defendants
satisfied the fourth factor, unawareness of the true facts by the
party asserting the estoppel, since William Gibbons testified
“that he believed the earlier lawsuit terminated the collective
bargaining agreements.” In Community Health Servs., the
Supreme Court discussed this factor and how to satisfy it:
The truth concerning these material facts must be
unknown to the other party claiming the benefit of the
estoppel, not only at the time of the conduct which
amounts to a representation or concealment, but also at
the time when that conduct is acted upon by him. If, at
the time when he acted, such party had knowledge of the
truth, or had the means by which with reasonable

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