Failure to Provide Fee Motion Papers and Reporter’s Transcript of Fee Motion Clinched the Affirmance.
Goesch v. Hennagan, Case No. H037259 (6th Dist. Oct. 31, 2012) (unpublished), authored by Justice Elia on behalf of a 3-0 panel, is another stark reminder of two important points necessary to preserve appellate jurisdiction/review: (1) appeal from a postjudgment fee order, and (2) providing the fee proceeding paperwork and a reporter’s transcript of the fee hearing to the appellate court.
Losing litigants got hit with an adverse costs award of $5,847.01 and adverse fee order of $50,000 after losing a quiet title action, claiming that there was no basis for a fee award under contract or under the old CCP § 128.5 sanctions provision.
They lost their bid for an overturn on appeal.
The first problem was that losers did not separately appeal the postjudgment fee order, an appellate no-no. The record in the case showed that the court realized that fees should be addressed in a separate proceeding, despite signing off on a boilerplate judgment granting fee entitlement to the winners but leaving the amount for a different day. However, notwithstanding this boilerplate, there are cases recognizing that the loser must appeal a later fee order where the record actually shows the trial court recognized that both entitlement and fee amounts had be adjudged in a separate hearing--which was the case in Goesch. (See, e.g., Silver v. Pacific American Fish Co., Inc., 190 Cal.App.4th 688, 692-693 (2010); Norman I. Krug Real Estate Investments, Inc. v. Praszker, 220 Cal.App.3d 35, 45 (1990); Colony Hill v. Ghamaty, 143 Cal.App.4th 1156, 1172 (2006); DeZerega v. Meggs, 83 Cal.App.4th 28, 44 (2000).)
However, the second flaw was equally daunting--losers failed to provide the fee motion paperwork or the transcript of the motion hearing, which also precluded effective appellate review. End result was that the fee order was sustained upon review.