Fees Not Based on Listing Agreement With Mediation Clause Affirmed on Appeal.
Sometimes it all depends on the contractual agreement under which you are awarded attorney’s fees.
We have done some recent posts on the mediation condition precedent which can disqualify fee recovery depending on whether it is not pursued before commencement of a suit or even during the course of a dispute. A losing party lost a promissory note and listing agreement dispute, with both agreements having a fees clause (but only the listing agreement having the mediation condition precedent). The price of a loss was quite hefty, with loser being hit with attorney’s fees of $219,171.18 and other costs of $19,205.34.
Loser mainly hinged his appeal on the victor’s failure to allegedly mediate.
Didn’t work under the facts at issue, said the appellate court in affirming the fee award in Keith v. Shuttleworth, Case No. D058881 (4th Dist., Div. 1 June 14, 2012) (unpublished). The complaint was upon a promissory note, which does not require mediation before commencement of litigation. Although suggesting the note arose from the listing agreement, this theory was never presented below and was not supported by an adequate record. Beyond that, the judgment on the complaint was never appealed, so it could not appeal the award of fees on the complaint.
Because winner was entitled to fees for winning on appeal, the appellate court deemed it the “better practice” to allow the trial court to fix such fees once the dust settled from the appeal.