Difference Between This and Frog Creek: Final Award Occurred After Interim Fee Award, So There Was Finality.
On May 27, 2012, we reported on the First District, Division 5’s published opinion in Frog Creek Partners, LLC v. Vance Brown, Inc., 2012 Cal.App. LEXIS 625 (2012), where the appellate court concluded that the trial court erred in awarding Civil Code section 1717 fees to the party who filed a successful petition to compel arbitration in a pending lawsuit where no prevailing party ultimately had not been determined on the breach of contract claims.
Well, we now have a closely following unpublished decision on the same subject.
In Barfield v. Ecology Control Industries, Inc., Case No. A131883 (1st Dist., Div. 5 June 4, 2012) (unpublished), defendant won a petition to compel arbitration in a pending case, having to appeal to the intermediate appellate court to achieve this result. Then, the lower grant granted the defense $37,500 in section 1717 fees, but stayed the action until there was a judgment and settlement. Later then, the arbitrator issued a final award in favor of defendant, and judgment was entered on the arbitration award.
Losing party argued that the successful petition to compel arbitration was only an interim victory not entitling the defense to a fee award. Technically correct, said the appellate court, but a much different procedural posture than Frog Creek. The Barfield appeal of the fee award did occur after a final judgment, such that the award could be sustained notwithstanding that the fee award was technically erroneous at the time. Subsequent events took care of things, so to speak.