Goes To Show You That Discretionary Calls On Allocation Are Oft Times Affirmed On Appeal.
K.G. Mullen, Inc. v. Kirakosian, Case No. B322602 (2d Dist., Div. 3 May 4, 2026) (unpublished) primarily involved a construction “change order” dispute between a contractor and residential owner over construction of a steel deck at owner’s house. After a bench trial, contractor was awarded about $40,000 in damages (although, on appeal, statutory penalties under prompt payment statutes had to be revisited) and roughly a quarter of requested attorney’s fees ($60,000 was the fee request). The lower court basically held that the majority of the case did not involve the change orders, so that only reduced, allocated fees should be awarded under prompt payment statutes after concluding no contractual fees should be awarded because only oral agreements were involved.
The appellate court affirmed the fee order, which was challenged by contractor as not being enough. Contractor’s problem, to the appellate court, was that it could not prove the lower court’s allocation was an abuse of discretion. Because there were compensable issues relating to unsuccessful contract versus successful prompt payment claims, the trial judge’s resolution of these issues on the fee motion were not erroneous under the circumstances. However, the panel did agree that statutory penalties were due to contractor under the prompt payment statutes.