Construction, Indemnity: Fee Denial Against Winning Subcontractor Under Indemnity Clause Reversed, While Reduced Fee Award In Favor Of Other Winning Contractor Affirmed Except For Minor Modification Upward

 

Fee Entitlement Was Present, But Reducing Request For Another Party No Abuse Of Discretion.

     Esparza v. PulteGroup, Inc. (Centex), Case No. D063736 (4^th Dist., Div. 1 May 14, 2015) (unpublished) was a construction defect/personal injury action by several residential homeowners against Centex (which subsequently merged into the PulteGroup), which in turn cross-complained against some subcontractors (including for express indemnity based contractual clauses). Two subcontractors obtained either a nonsuit or directed verdict on the indemnity cross-claims, then seeking attorney’s fees. The lower court denied fees altogether for first sub, but granted second sub $149,111 in fees (although reduced from the second sub’s request).

     The appellate court reversed the fee denial to the first sub, because even Centex recognized there was an express indemnity claim that was nonsuited in favor of the prevailing sub. As far as the second sub’s appeal, there was no abuse of discretion in the lower court’s decision to cut some of the request for a second trial attorney’s efforts. However, there was a “double cut” deduction of $2,448 for certain billed hours, such that the $149,111 award got increased by that $2,448 amount.