Brokers Were Also Not Parties to Purchase Agreement With Fees Clause.
In Anter v. Pitts & Bachmann Realtors, Case No. B213519 (2d Dist., Div. 6 Nov. 23, 2010) (unpublished), residential property purchaser won a substantial $2.54 million arbitration award, jointly and severally, against sellers as well as sellers’ sales agent and broker. However, the arbitrator did not determine the prevailing party issue even though there was a purchase agreement with a fees clause. There was a mistake here–purchaser should have pressed for a fee recovery determination.
Two weeks after the arbitration award, purchaser submitted a costs memorandum, but this was untimely because an arbitrator award correction request must be made 10 days after service of a signed copy of the award. (Code Civ. Proc., § 1284.) The arbitrator also felt the stipulations to arbitrate were ambiguous on his authority to award costs and attorney’s fees absent a stipulation or a court order. After judgment on the award was entered, purchaser filed separate motions seeking $102,373 in costs and about $600,000 in attorney’s fees plus interest. The lower court denied each motion.
Agent/broker appealed the merits of the award, and purchaser cross-appealed the denial of costs/fees.
Both lost, with the rulings affirmed across the board.
The trial court did not commit error by failing to correct the arbitration award to allow purchaser his fees and costs as prevailing party in the arbitration. Although the arbitrator incorrectly concluded he did not have jurisdiction to award fees/costs against sellers, purchaser erred by failing to petition either the arbitrator or the trial court to correct or amend the award to include attorney’s fees and costs. (Corona v. Amherst Partners, 107 Cal.App.4th 701, 706 (2003).) With respect to agent and broker, neither of them was a party to the real estate purchase agreement, because the contract provided that participation in arbitration did not mean they were parties to the agreement. Neither signed the purchase agreement such that agent/broker could not be liable for fees and costs.