Originally, Only $1,050 Ordered, But Apportioned Amount Went Up When New Judge Assigned to Fix Fees on Remand.
This case has an interesting history, including a prior appeal which resulted in this decision after the case was remanded and attorneys’ fees were “re-fixed.” However, the post-remand appellate decision does have some great pointers on how fee submissions can convince a trial judge that apportionment is unnecessary.
What happened before is this: neighbors in Trabuco Canyon got into a residential squabble over “views,” with one set suing another neighbor to enforce some purported easement agreements. The lower court refused to enforce the agreements; but, based on a fees clause in one agreement, apportioned time in favor of the winning litigant (based on a belief that very little work should have been apportioned in favor of litigant). The apportioned time was only $1,050 out of requested fees of $179,900.
In an earlier appeal which we discussed in a December 3, 2011 post, the appellate court concluded that the $1,050 apportionment was erroneous because the trial court mistakenly concluded that the absence of a formal covenant running with the land virtually eliminated any fee recovery.
So, the case was remanded. But, there is a twist. The original judge hearing the trial and first fee request retired, such that the remand fee request was assigned to a new judge.
The new judge decided that the apportioned amount due to the winning litigant was $65,898 for pretrial work only under the one easement agreement with a fees clause. In so apportioning, the trial judge did provide a very good “roadmap” of his apportionment decision. For example, he allowed full recovery for such tasks as mediation, status conferences, case management conferences, client calls, and opposing counsel calls because apportionment was impossible. Trial work time was not awarded because the moving party’s counsel did not provide meaningful evidence of the time spent on trial activities.
The losing party hit with the fee award appealed, but to no avail.
Apportionment is a discretionary process, with the trial court vested with authority to adjudge the credibility of the moving party’s attorney fee submissions. The trial court obviously found the moving submissions credible, with the reviewing court saying that the record supported the credibility determinations in Hafen v. Nielsen, Case No. G047689 (4th Dist., Div. 3 Nov. 26, 2013) (unpublished), authored by Justice Aronson on behalf of a 3-0 panel.