• It Gets Tricky
  • December 14, 2010 | Author: Gary A. Watt
  • Law Firm: Archer Norris A Professional Law Corporation - Walnut Creek Office
  • So the client is on the wrong end of a judgment.  And at the very end of the judgment, the court says the other side "shall recover . . . attorney fees and costs of suit."  The judgment is entered and notice of entry is served.  Counsel timely appeals.  The notice of appeal states that the appeal is a challenge to the fee award.

    Counsel chooses to use an appellant's appendix, saving client some record preparation costs, and starts drafting the opening brief.  In the meantime, at the trial court, the issue of fees is resolved after the usual briefing and a hearing.  An order stating the amount of fees client has to pay is entered.  Counsel makes sure to include that order in the appendix.  The opening brief is filed.  Confident in getting the fee award undone, counsel waits for the response brief.

    But what arrives is a motion to dismiss the appeal.  A bead of sweat emerges on counsel's forehead.  Counsel grabs the appendix, checks the notice of entry date, compares the notice of appeal date, it's well within 60 days.  Everything will be okay.

    Or will it?

    It won't.  In a case decided 10 days ago, Silver v. Pacific American Fish Co., Inc. 2010 Cal.App. LEXIS 2014, things did not turn out okay.  There, Silver appealed the fee award by filing a notice of appeal before the order granting attorney fees was filed.  What Silver did not do, was file a separate notice of appeal from the order awarding fees.  The appeal was dismissed for lack of jurisdiction.  Case closed.  New case soon to follow, if you get my drift.

    So what went wrong?  Counsel timely appealed from the initial judgment on the merits.  And granted, it did say that opposing party "shall recover . . . attorney fees and costs of suit."  But the general rule is that "if a judgment or order is appealable an aggrieved party must file a timely appeal or forever lose the opportunity for appellate review."  (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.)  A postjudgment order that awards or denies costs/attorney fees is separately appealable.  And if no appeal is taken from such an order, the appellate court lacks jurisdiction to review it.

    Silver attempted to rely on two exceptions.  The first exception is that a notice of appeal filed after rendition of a judgment or statement of intended ruling but before entry of judgment may be treated as timely.  A common example is filing a notice of appeal from an order granting summary judgment and not the soon-to-follow judgment.  Silver could not obtain the benefit of this exception though, because the notice of appeal was filed before the hearing or ruling on the fee motion.  As a result, there was no statement of intended ruling or decision yet.  The exception did not apply.

    The second exception goes like this: An appeal from a final judgment encompasses a subsequent order fixing the amount of attorney fees, if the judgment adjudicated entitlement to attorney fees, leaving only the amount of fees to be inserted later.  (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)  Silver argued that since the judgment stated, "shall recover . . . attorney fees and costs of suit" then all that was left was to fix the amount of fees, bringing his case within the Grant exception.  But as the Court of Appeal stated in rejecting that contention, the key to the exception is adjudicating entitlement to fees.  Only where entitlement to fees has already been decided, will the exception apply.

    Silver could not avail himself of the Grant exception because it was after the initial judgment that the "parties subsequently litigated in a separate, postjudgment proceeding, not only the reasonableness of the amount of attorney fees Pacific was claiming, but also the threshold issue of Pacific's entitlement to such fees."   The briefing included arguments as to Pacific's right to obtain fees under Civil Code section 1717.  Failure to separately appeal from the postjudgment order awarding fees, deprived the appellate court of jurisdiction.

    In the end, it gets tricky.  So be careful.  As one appellate court said while dismissing a case due to a late notice of appeal, trial lawyers and their clients can always consult with "able appellate counsel."  And as Presiding Justice David G. Sills said in In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, "Appellate work is most assuredly not the recycling of trial level points and authorities."