Appeal Was Timely, Given That Judgment Appeal Swept In Later Order Fixing Fees.
In Ducoing Enterprises, Inc. v. Patriot Paving, Inc., Case No. G051582 (4th Dist., Div. 3 June 15, 2016) (unpublished), a 3-0 decision authored by Justice Fybel, contractor won a $39,335 compensatory award against property owner in a complaint and a cross-claim involving both contractual and negligence claims. The original judgment stated that contractor shall also recovery its attorney’s fees “$ per motion.” Later, the lower court awarded $91,819.58 in fees. (BLOG HINT TO THE WISE—A $39,000 dispute also carried with it close to a $92,000 fee award; litigation practitioners need to take heed that fee awards can eclipse the damages amount at issue and should prepare clients that they pay both if the clients do not prevail. Also, we have pled with everyone to separately appeal postjudgment fee awards fixing the fees, whether they are or are not “subsumed” under the original judgment.)
Property owner’s appeals of the merits and fee award were not successful.
Contractor first challenged the timeliness of property owner’s appeal, because owner did not appeal the amended judgment which set forth the “fixed” award but only appealed the original judgment. The 4/3 DCA panel determined that the appeal from the original judgment, where a fixing occurred later, “subsumed” the later order setting the award amount—given the judgment had the language “$ per motion.” (Grant v. List & Lathrop, 2 Cal.App.4th 993, 998 (1992).) However, if the judgment simply says, “as shall be determined,” then a separate appeal was necessary from the later “fixing” fee award. (Colony Hill v. Ghamaty, 143 Cal.App.4th 1156, 1171-1172 (2006).)
On the merits, the appellate court agreed that the contractual and non-contractual claims were inextricably intertwined such that apportionment was not needed. No abuse of discretion occurred in failing to apportion between the various claims.