However, Attorney Did Prevail in Lawsuit, So Costs Should Have Been Awarded.
Attorney sued a former client in a dispute over attorney’s fees for services provided in an arbitration. Attorney, who replaced another attorney in an owner-contractor construction defect dispute, did win a $1,034,297, plus $40,125 attorney’s fees, award from an arbitrator, although the bulk of the award resulted from a settlement agreement negotiated by the prior attorney. After the fact, client (the owner) noticed that the costs memo submitted in the arbitration was “all wrong,” because successor attorney did not do all that much work. However, attorney then filed a lawsuit against client to recover fees because the $40,125 was set aside in a blocked client account. The jury awarded attorney $29,000 in quantum meruit fees, even though the trial court refused to award costs.
Attorney appealed in Shumake v. Mirisola, 2012 WL 695473, Case No. B227383 (2d Dist., Div. 2 Mar. 5, 2012) (unpublished). Except to gain a remand because the client conceded attorney prevailed after a jury trial for purposes of being entitled to routine costs, attorney didn’t get any added mileage on appeal.
His principal argument was that the $40,125 fee arbitration award was res judicata and had binding effect on client in the subsequent attorney-client lawsuit over what fee should be awarded. Nope, said the panel in more eloquent language that we use here. Attorney was not an “arbitral party” such he could not argue res judicata applied as against client in the ensuing lawsuit. (Grinham v. Fielder, 99 Cal.App.4th 1049, 1054 (2002).)
Comments