Here is one demonstrating that appellate courts do not blindly rubber stamp trial court fee awards, simply because a side did prevail. Especially so, when there are multiple lawsuits being litigated and the winning attorney did not clearly apportion out work spent on a parallel, but legally unrelated, action involving the same clients.
Grubb & Ellis v. nXa, LLC, Case No. B225096 (2d Dist., Div. 8 Oct. 28, 2011) (unpublished) is a situation where defendant won summary judgment against G&E for allegations that defendant breached a real estate listing agreement. (Defendant also lost some cross-claims against G&E.) The trial court awarded defendant $168,508.75 in attorney’s fees to defendant for defending against G&E’s action out of a requested $210,000 in fees.
On appeal, the amount of the fee award was reversed as being unreasonable.
The appellate court did not dispute fee entitlement because, after all, defendant did beat the contractual commissions claim having a fees clause in effect. Defendant prevailed, even though it lost the cross-claims and the lower court did retain discretion to decide which side prevailed.
However, the fee award amount is what troubled the appellate court. The defense attorney failed to apportion fees between this case and a parallel fraud action involving claims that were not legally (but only historically) related. The time entries in the supporting fee motion papers were so vague that even the appellate court could not sort it out. The Second District found it was unfair for defendant, under the circumstances, to recover “each and every dollar it has paid to its attorneys, for whatever cases . . . .” The case was remanded for a more measured fee determination.
BLOG UNDERVIEW–The result underscores what Justice Fybel of the Fourth District, Division 3 said at a fee seminar in Los Angeles last year–litigants need to provide a “roadmap” for the appellate court on attorney’s fees issues, something which may require apportionment of work on noncompensable claims or exclusion of work not really related to the case where fees were indeed awarded.