Appellants Had Only Contested Amount of Fees Below, Not Raising Problems With Fee Entitlement.
Here is one from the Third District that serves to underscore a crucial lesson for both trial and appellate practitioners: raise challenges at the lower court level or risk having them declared waived at the appellate level. That happened in the next case.
In Valdovino v. Mason McDuffie Real Estate, Inc., Case No. C062169 (3d Dist. Feb. 2, 2011) (unpublished), seller prevailed against buyers and seller’s brokerage agent by establishing that no real estate purchase contract existed, with there being fees clauses in both the proposed purchase and listing agreements. Postjudgment, the trial court ordered buyers to pay more than $107,000 of seller’s attorney’s fees under the proposed purchase agreement fee clause and also ordered broker to pay $94,761.50 in fees under same clause. However, in opposing the fee request below, broker only challenged the amount of the fees, not the basis for entitlement. Bad error.
On appeal, the Third District found broker forfeited a challenge to fee entitlement. What made matters worse was that broker had contested the right to fees in opposition to buyers’ separate fee motion, but did not do so when opposing seller’s motion. Appellate courts have discretion to consider issues raised for the first time on appeal, but this is usually reserved for pure questions of law where the public interest or public policy is involved. (Bayside Timber Co. v. Board of Supervisors, 20 Cal.App.3d 1, 5 (1971).) Neither of these concerns were present in this private controversy, such that the Third District declined to visit the entitlement issue by affirming the challenged fee award.