Appellant’s “Implied-In-Fact” Contract Analysis Was Too Crimped In Nature.
We assume that the losing party in a dispute over provision of photocopying services was not happy when the trial judge awarded the prevailing defendant/cross-complainant $159,356.73 in attorney’s fees and $1,729.87 in costs. That prompted an appeal, but the result did not change in Wholesome Choice Market, Inc. v. Digitech Business Solutions, Inc., Case No. G056667 (4th Dist., Div. 3 Oct. 18, 2019) (unpublished).
Losing party principally argued that there was no contractual basis for a fee award. However, the record showed that there was a written services agreement with a fees clause and the parties’ conduct did show a continuing “implied-in-fact” agreement justifying a fee award. The appellate court, in a 3-0 opinion authored by Justice Goethals, found that the distinction between express and implied contracts is not that great, both dependent either on a bargain memorialized in words or on a bargain based on conduct. The evidence supported the notion that the parties entered into an implied contract that included the terms in the service agreements—including the fee clauses—to which the parties mutually consented. That fully supported the fees/costs awards.