Request Made in Verified Trial Brief Did Pass Muster.
This one is interesting for the proof accepted to sustain a $5,000 attorney’s fees award to the winner in a partition action.
Defendant in a partition action challenged a finding that plaintiff was entitled to $5,000 in attorney’s fees as a cost in a partition action. Defendant presented no testimony or documentary proof, but relied on a request in a trial brief. Was this enough?
Yes, was the answer in Lockard v. Hunter, Case No. H036258 (6th Dist. Mar. 9, 2012) (unpublished).
The reason? The trial brief was verified. Usually, a trial brief is no more than argument. However, plaintiff verified the trial brief so that it was the equivalent of an evidentiary declaration. Also, the amount was not outlandish, because defendant himself had submitted some proof that he was entitled to a $3,000 fee award for efforts during the partition action. Fair enough here, in this equitable action.