Result in Recent Unpublished Decision Shows How Attorney’s Fees May Eclipse the Amount in Controversy.
Our Mission Statement reflects that attorney’s fees are frequently the tail that wags the litigation dog, meaning that recovery of fees may be essential to a prevailing party trying to vindicate its interest in a case with an amount in controversy that could be eclipsed by the fees expended on attorneys. [See Wikpedia article on Dog Communication]. This principle also applies to contractual arbitration proceedings.
Pres. Johnson and Friend Pres. Nixon and Friend
An example comes from the result detailed in Thee Aguila, Inc. v. Tseheridis, Case No. G040066 (4th Dist., Div. 3 Apr. 24, 2009) (unpublished), a 3-0 decision authored by Justice Fybel.
There, the whole dispute revolved around entitlement to a $50,000 deposit under a written agreement to purchase a restaurant-nightclub after the deal failed to close. Eventually, the parties engaged in a contractual arbitration. The result shows how recovery of fees can be the important game breaking event: seller seeking the deposit was found not to be entitled to it (ordered to reimburse the money to the buyer), as well as had to pay buyer $57,030 in attorney’s fees and costs as well as reimburse buyer for its share of arbitration expenses in the amount of $15,973.75. All of this over a dispute involving a $50,000 deposit—with seller losing the $50,000 deposit and paying $76,000 over and beyond to buyer.
Because contractual arbitration was involved, seller lost his appellate challenges to the arbitration award primarily because of Moncharsh v. Heily & Blasé, 3 Cal.4th 1 (1992). Any errors in the arbitrator’s legal interpretation of the written purchase agreement could not be overruled by the courts, unless the arbitration provision required that the arbitrator and reviewing courts were bound by the same rules as applicable in normal court actions (requirements not in the arbitration provision).
BONUS: (dogged oratory of George Graham Vest).
GENTLEMEN OF THE JURY:
The best friend a man has in the world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads.
The one absolutely unselfish friend that man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous is his dog. A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in an encounter with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings, and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.
If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him, to guard him against danger, to fight against his enemies. And when the last scene of all comes, and death takes his master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by the graveside will the noble dog be found, his head between his paws, his eyes sad, but open in alert watchfulness, faithful and true even in death.