Denial Order Changed to Provide Prevailing Party Was Entitled to Fees Upon Subsequent Motion.
In Salazar v. Salazar, Case No. D061716 (4th Dist., Div. 1 Nov. 4, 2013) (unpublished), a court enforced a settlement agreement between brothers, with the agreement and a promissory note containing fees clauses in the event of a default. However, the lower court denied non-defaulting brother’s motion for fees made in a reply memorandum submitted in support of a motion to enforce the settlement agreement, indicating that he did not follow the correct procedure in presenting it through a formal noticed motion.
The appellate court reversed this denial. The trial court, instead, should have allowed brother to file a subsequent fees motion and then rule upon it as the prevailing party. The outright denial was erroneous, with the reviewing court observing that the correct ruling was to find non-defaulting brother was the prevailing party and was entitled to fees based upon bringing a proper subsequent fees motion.