As we read more and more cases on fee awards, we are struck about how both trial and appellate courts really like litigants to be reasonable and do not condone litigation that goes on and on in a fashion derided by Charles Dickens some time ago. These next two cases illustrate how the protracted nature of litigation, especially if chargeable to the non-prevailing or wealthier side in a dispute, may well play a part in a decision to affirm substantial fee awards.
Estate of Gridley, Case Nos. A123463/A124908 (1st Dist., Div. 2 Oct. 19, 2010) (Unpublished).
This one involved a contest between a daughter and two sons about how 40% of father’s estate residue would be divided up, despite the fact they had all entered into a written beneficiary equalization agreement with a fees clause. Eventually, daughter lost, pretty much across the board, her challenges to the equalization agreement. Sons, as prevailing parties under the contractual fees clause, filed to recoup $655,336.75 in fees, with the lower court granting the request but awarding slightly less, but substantial nonetheless–$626,159.75. In doing so, the lower court noted that daughter’s "unfocused, acrasial [intemperate; excessive] presentation of ever-expanding, cobbled-together theories" made the case more expensive and complex than it needed to be. The appellate court found no abuse of discretion, given that daughter drove up the acrimony and required sons to devote more resources than were likely necessary.
Marriage of Bohbot, Case No. B214035 (2d Dist., Div. 3 Oct. 20, 2010) (Unpublished).
Here, you knew this one was not going to end up good for the loser when the appellate court early on observed: "This is our fourth and hopefully last opinion in this seemingly endless litigation."
Wife was awarded $200,000 in attorney’s fees and $150,000 for litigation costs advanced by another firm (not to mention $50,000 awarded to her experts). The bases were Family Code sections 2030-2032, the playing field leveler, and section 271, the sanctions provision against uncooperative/cantankerous litigants. Although finding some shared fault on both sides, the family court ultimately found that husband spent two and a half times more and that his income/expense declarations did not inspire as much confidence as ex-wife’s. The lower court also found wife should be responsible for one-third of her claimed fees. Again, no abuse of discretion, especially since husband did not point out what work was being challenged—a classic situation to find a waiver or forfeiture, as the appellate court did. Fee award affirmed.
BLAWG BONUS: Acrasia was the name of the racehorse that won the 1904 Melbourne Cup.