Fourth District, Division 3 So Holds In Real Estate Nondisclosure Case.
As in life, we sometimes see appellate decisions come out in cycles that teach or reinforce very important points. Appealability is an issue highlighted in our June 6, 2008 post (discussing the unpublished Johnson decision from the Second District) and in our June 7, 2008 post (discussing the published P R Burke decision from the Fourth District, Division 2). Now, we have a recent unpublished decision from our local Santa Ana-based appellate court, in a 3-0 opinion authored by Acting Presiding Justice Moore, that emphasizes the undertone of our prior posts.
Chait v. Strauch, Case No. G037756 (4th Dist., Div. 3 June 6, 2008) (unpublished) faced a very similar issue confronted in Johnson, coming to the identical conclusion as the justices did in the Second District opinion. In Chait, plaintiff purchasers of a Three Arch Bay home sued defendants sellers for breach of contract, nondisclosure, and misrepresentation, despite the fact sellers had the benefit of numerous inspections and had signed a pre-closing release. Sellers won a defense verdict on the merits, a judgment upheld on appeal. Later on at the trial court level, sellers received an attorney’s fees award of $416,303. Buyers appealed even though they did not appeal the separate fee order made after the initial judgment.
Anyone want to bet on the result? We doubt it.
Acting Presiding Justice Moore, speaking for the Fourth District, Division Three panel consisting of Justices Fybel and Ikola, found the appellate court lacked jurisdiction to entertain the challenge that the fee award was unreasonable. After noting that the initial judgment on the merits said nothing about fees (only mentioning routine “costs and disbursements”), the Court of Appeal found its hands were tied: “Therefore, with no proper notice of appeal, we have no jurisdiction to review the fee award.”
PRACTICE POINTER—Hopefully, the three cases we have discussed in recent posts are painfully clear in teaching practitioners that it is best to appeal from the initial judgment as well as subsequent postjudgment fee orders. In that way, preservation of appellate jurisdiction is as bulletproof as it can get.