Appealability--Yet Again, An Illustration of Appeal the Separate Fee Award or Lose It!

Fourth District, Division Three Reinforces the Principle In an Unpublished Decision.

            In our “Cases:  Appealability” section, you will find several cases stressing the necessity to separately appeal a fee award in order to even obtain review by the appellate court.  The next case reinforces, yet again, that lesson.

            In Fink v. Kirwin, Case No. G039395 (4^th Dist., Div. 3 June 23, 2008)(unpublished), our local Santa Ana-based Court of Appeal confronted an in pro per plaintiff appealing a postjudgment attorney’s fees award of $12,500.  Plaintiff suffered an adverse judgment and suffered dismissal of his first appeal based on untimeliness.  Defendant also won Civil Code section 1717 fees of $12,500 against plaintiff in a March 19, 2007 signed order.  Plaintiff did not appeal until October 9, 2007 (the second appeal).  Unfortunately, this--like his first appeal--was untimely.

            Justice Ikola, writing for a 3-0 panel of the Fourth District, Division Three, dismissed plaintiff’s fee award appeal.  Plaintiff’s first appeal only dealt with an appeal of the merits judgment, which did not deal with an adjudication of defendant’s entitlement to an award of attorney’s fees.  It is up to the appellant to properly specify that the fee order is the subject of appeal.   (See DeZerega v. Meggs, 83 Cal.App.4^th 28, 43 (2000); Sole Energy Co. v. Petrominerals Corp., 128 Cal.App.4^th 212, 239 (2005).)  Plaintiff never even argued the fee award in the first dismissed appeal, which made it easy to infer that it was not being raised as an issue at the early stage.

            Because the fee order was signed on March 19, plaintiff had 180 days to appeal, as set forth in California Rules of Court, rule 8.104(a).  Plaintiff’s October 9, 2007 appeal was 22 days late.  It was inconsequential that a notice of entry was served on August 30, 2007, because this did not stop the appellate “clock” from ticking from the entry of the signed March 19 order. 

            Once it determined that the appeal was late, the Court of Appeal had no choice but to decide it lacked jurisdiction, dismissing the appeal. 

Without sounding like a broken record (although both the contributors do remember LPs), the lesson—yet again—is to separately and timely appeal fee orders in order to preserve appellate review.