Fourth District, Division One Holds Acceptance of Payment of a Standalone Fee Order Waived the Right to Appeal.
The next case deals with the principle holding that voluntary acceptance of benefits will sometimes waive the right to appeal. The context was a fee motion winner accepting payment from the loser, but then the winner appealing on the grounds the fee award was inadequate. No way, the Court of Appeal ruled, dismissing the appeal.
In Alkire v. Vaughn, Case No. D051263 (4th Dist., Div. 1 June 24, 2008) (unpublished), legal secretary sued her former attorney bosses claiming she was owed wages as an employee rather than an independent contractor. Defendants finally agreed to pay legal secretary $20,000 in settlement of the wage claims and agreed she was the prevailing party for purposes of a subsequent fee motion to be determined by the trial court under wage/hour fee-shifting statutes. Legal secretary sought to recover $234,000 in fees and costs, while defendants opposed on the basis that plaintiff had unreasonably prosecuted the case. Defendants also pointed out that they had offered to pay legal secretary $32,500 before suit was filed and well before the eventual settlement was reached. The trial court sided with the defense, awarding legal secretary only $26,580 in fees and $1,285.57 in costs. Legal secretary accepted defendants’ tender of the fee award payment of $27,865. Legal secretary appealed, and defendants moved to dismiss the appeal.
Justice Benke, writing for a 3-0 panel of the San Diego-based Court of Appeal, dismissed the appeal.
The appellate court acknowledged the general principle that one who accepts the benefits of a judgment usually waives the right to later appeal. The Court of Appeal found that no exceptions to the general rule applied—this fee award was not a severable judgment from which only partial benefits could be accepted (it was a single sum) and did not involve a judgment involving different pieces of property (as in divorce cases, where acceptance of one asset does not mean an appeal cannot be taken on a different asset ruling). Rather, the case resembled a very similar result reached in Mathys v. Turner, 46 Cal.2d 364, 366 (1956), which reasoned that the winning party cannot gamble on a better or worse result: “[I]f a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him, and that part is of such a character that the part adverse to him cannot be reversed without affecting the part which is in his favor and requiring the reversal of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal from those parts which are against him.”
Upshot: if you are a fee winner and want to appeal, do not blindly accept payment of the award. Instead, refuse the tender and take your chances on the appeal if you want to have an appellate court review the fee award for being inadequate in nature.
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