No Entitlement, No Fees.
In SMDM Properties, Inc. v. Developers Diversified Realty Corp., Case No A126643 (1st Dist., Div. 2 Jan. 10, 2011) (unpublished), the appellate court reminded us of a pivotal lesson in the attorney’s fees area: you need a proper predicate for fee entitlement. If not, no fee recovery. There, plaintiffs took issue with a lower court striking an attorney’s fees prayer alleged as an adjunct to a standard negligent misrepresentation claim. No error, said the appellate court. No authorities demonstrated that plaintiffs should get fees as consequential damages if they win a negligent misrepresentation claim. The alleged fee clause was not broad enough and no “tort of another” exception was pled. Result: no harm in striking a fee prayer.