Second District, Division 1 Affirms and Remands to Award Fees on Appeal.
Levaton v. Levaton, Case No. B213730 (2d Dist., Div. 1 Sept. 24, 2010) (unpublished) involved a family real estate deal gone bust, with the trial court ultimately awarding one side rescission. An initial appeal affirmed most of the judgment, but remanded to the trail court for trial on the issue of fair rental value. While the first appeal was pending, the trial judge awarded the winning side $45,081 in attorney’s fees. Losers contested whether there was a proper basis for a fee award.
They lost.
The fee clause at issue stated: “In the event of any legal problems, all legal fees shall be paid by Egal Levaton regarding this transaction or any other problems.” Because no extrinsic evidence was offered, the appellate court did a de novo review and determined that the clause was broad enough to include recovery of fees expended in litigation (especially stressing words like “any legal problem” or “any other problems”). The “transaction” language referred to the failed real estate deal, so it too was broad in nature.
Losers then argued that the clause was ambiguous because it was only unilaterally worded
to say that Egal would face fee exposure. Not so, said the reviewing court. That is exactly where Civil Code section 1717 comes in to make the right reciprocal, so that the prevailing party recovers fees whether or not he/she is the party specified in the contract. (Pacific Custom Pools, Inc. v. Turner Construction Co., 79 Cal.App.4th 1254, 1268 (2000).)
So, the trial judge’s determination was affirmed and the matter remanded to determine the fees due to winners on appeal.