Confusion Amok – But Fee and Expert Witness Fee Recovery Awaited Subsequent Determinations.
JMR Construction Corp. v. Environmental Assessment and Remediation Mgt., Inc., Case No. H039055 (6th Dist. Dec. 30, 2015) (partially published; fee and expert witness fee discussions not published) just goes to show you that fee and 998 recoveries will not have final status until there is a true order fixing fees, which may determine whether the 998 award is also proper. Bear with us for a bit.
General contractor did recover against subcontractor/subcontractor’s surety on a public works construction dispute, even though defensing a cross-complaint by the opponents. The trial court decided general contractor was entitled to Civil Code section 1717 contractual fees for defending the cross-complaint in an unfixed amount and CCP § 998 expert witness fees in the amount of $90,644.07 based on the math that general contractor recovered $315,631 plus unspecified attorney’s fees which exceeded pretrial offers of $375,000.
Subcontractor/its surety appealed. They lost the compensatory damages challenges, but did win (somewhat) on the fee and 998 awards. The trial judge did not fix any amount of attorney’s fees awardable to general contractor, such that there was nothing to review. However, this did have significance on the review of the 998 order—without a fixing of the fees, it was impossible to determine if the judgment was truly more favorable to general contractor so as to justify the expert witness fee award (resulting in a reversal). There, you go, bitter sweet in many ways—with subsequent events determining where this case will end up.