Lack Of Fee Entitlement Was Clear.
In Davis v. The J. Hartman Co., Case No. G051648 (4th Dist., Div. 3 Nov. 28, 2016) (unpublished), a fees clause in a real estate independent contractor consulting agreement provided that a judge or arbitrator in an arbitration had to award reasonable attorney’s fees to the prevailing party. However, the matter was not arbitrated, but was heard by a court-appointed referee. After the referee adjudicated the matter, one party moved to recoup fees. Both the trial and appellate courts said “no go,” rejecting the fee request.
The fees clause was clear—it only applied to an arbitration, and that did not happen. The appellate court also rejected the argument that a prayer for fees in a pleading is the equivalent of a judicial admission, because such a prayer does not establish whether there was substantive fee entitlement (which was missing in this one).
Justice Thompson authored the 3-0 panel decision.