On Remand, Reversal Might Mean that No One Prevailed or Even Other Side Prevailed.
Where one side prevails across the board and obtains a fees/costs award, reversal on an important issue will usually overturn the entire award because the prevailing party determination might be different–either no side prevailed or even the original loser has now prevailed if loser’s relief is significantly greater from a pragmatic perspective.
No better case illustrates this result than the recent unpublished opinion issued in Kientz v. Jarvis, Case No. B228486 (2d Dist., Div. 7 Oct. 24, 2012) (unpublished).
Respondents had won on all issues in a landscape easement dispute involving an easement agreement with a fees clause. The lower court later awarded respondents $125,000 in fees (out of a requested $154,000) and $21,000 in costs (out of a requested $34,000).
Those awards went POOF! on appeal. The reviewing court primarily reversed the lower court’s findings that the appellants were prohibited from trimming mature trees in the landscape easement and that the easement was exclusive in nature. As a result, the discretionary prevailing party determination under Civil Code section 1717(b)(2) had to be reassessed on remand based on the merits reversal–after all, the trial judge now had to determine whether anyone prevailed after respondents’ more limited success in light of the appellate reversal.