$252,926.33 Fee Award Affirmed.
In Milano v. Edelson, Case No. B237971 (2d Dist., Div. 5 Apr. 11, 2013) (unpublished), buyer of a restaurant sued a seller for specific performance, deliberately electing that remedy over damages in order to get out to trial earlier. The stock purchase agreement, while lacking a “time is of the essence” clause (which meant that a delay in closing was not material), also had a broadly-worded fees clause encompassing “any action or proceeding arising out of [the stock purchase] Agreement.” Buyer won specific performance, interest on the purchase money held on escrow, and attorney’s fees of $252,926.33.
Although the damages award was reversed, the specific performance decree and fee award were sustained on appeal.
The broadly-worded fees clause entitled buyer to fee recovery for winning his specific performance claim. Seller then argued that the trial court erred in awarding fees to buyer out of the funds in escrow, citing Behniwal v. Mix, 147 Cal.App.4th 621 (2007). That argument might have won, but was forfeited on appeal. Reason? It was raised for the first time in appellant’s reply brief. (See Garcia v. McCutchen, 16 Cal.4th 469, 482 n. 10 (1997).)