First Appellate District, Division Three, Holds Trial Court’s Decision to Award Attorney Fees Following a Judgment Does Not Render the Appeal From Such a Judgment Futile
City of Novato v. MCCE Development, LLC, et al. Case Nos. A127298 & A128928 (1st Dist., Div. 3 3/30/11) (unpublished), consolidates two cases on appeal, in a dispute that generated five (5) appeals. The consolidated appeals involved the enforceability of a Subdivision Improvement Agreement against a party who took land subject to the SIA, but not as an assignee – very interesting, but not the subject of our blawg.
In their appeal of the attorney’s fee award, appellant’s sole argument was that it was error for the trial court to consider attorney fees while the appeal of the modified judgment was pending. The Court of Appeal concluded that the “contention is not well taken.”’[A]n award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. [Citation.] Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs.’” (Citing Bankes v. Lucas, 9 Cal.App.4th 365, 369 (1992).
We note that in April 2010, the trial court had awarded attorney’s fees in favor of the City in the amount of $476,713, and directed the City to pay $2,000 in attorney’s fees to one party, Morf, as the prevailing party on a contract cause of action. The trial court also directed payment to the City of an additional $161,284.23 in attorney fees in connection with appeal and post-appeal matters. All those awards survived the instant consolidated appeals.
The opinion is authored by Presiding Judge McGuiness, Justices Pollak and Jenkins, concurring.
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