Appeal: Postjudgment Order Filling In Amount Of Fees Correctly Appealed By Challenging Initial Judgment, But Fee Challenge To $90,542.50 Award Nixed Based On Inadequate Appellate Record

Case Demonstrates Cardinal Rule of Appellate Practice.

     Although we have come close to preaching to our readers that you should separately appeal an underlying judgment and all fee awards (interim or modified), there are exceptions to the “separately appeal” rule relating to subsequent postjudgment fee awards. One of the most important is that when a later order fixes the amount of costs and fees, an initial appeal from the order with unspecified costs/fees “blanks” subsumes later orders such that it will not be fatal in not appealing the later “fixing” fee order. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 2:156.2, p. 2-73.)

     In Gerhart v. Piazza, Case No. E049909 (4th Dist., Div. 2 June 30, 2011) (unpublished), a horse trainer successfully sued for not getting the full benefit of a lease, recovering judgment for $80,200 and then obtaining a fee award of $90,542.50. (BLOG OBSERVATION–In line with our Mission Statement that fees are the tail that wag the litigation dog, look at how the fee recovery exceeded the amount of the underlying judgment.) Defendants appealed.

     The first issue is whether the failure to appeal a subsequent fee order “fixing” the fees meant the appellate court lacked jurisdiction. It didn’t, for the reasons explained in the first paragraph of this post.

     So, what happened on the merits? Affirmed. The reason was that appellants violated a cardinal rule of appellate practice–they failed to provide an adequate record for review. Appellants failed to include any of the fee motion paperwork, a transcript of a continued hearing, or even the challenged order. Because the record showed that all material matters were not included, the presumption of completeness accorded to an appellate record was overcome. (Cal. Rules of Court, rule 8.163.)