$26,630 Fee Award Reversed On Appeal.
A fertile ground for an appeal in the fee area is that the pertinent attorney’s fees clause simply does not allow for a fee recovery based on its wording where parol evidence is not introduced (and it rarely is in fee disputes). Kiwata v. Kiwata, Case Nos. A147002/A147459 (1st Dist., Div. 1 Nov. 1, 2016) (unpublished) illustrates this point in the trust/probate area.
There, the lower court ordered a successor trustee/brother to reimburse trustee/other brother to pay $22,630 in attorney’s fees for prevailing in a probate dispute based on the wording of a no contest clause in an amended trust instrument. The appellate court reversed the fee award. The no contest clause only allowed the trustee to charge all fees and other legal expenses in defending such an action “against the gift to [successor trustee/brother];” thus, the trustee could only discretionarily diminish any gift to the other side but the clause was not the equivalent of a contractual attorney’s fees provision, requiring reversal of the fee award.