Section 1717: Litigant Prevailing Before Jury Solely On Tort-Submitted Claim Not Entitled To Contractually-Based Attorney’s Fees

 

Litigant Basically Elected Its Remedies.

    Havasu Lakeshore Investments, LLC v. Fleming, Case No. G051963 (4th Dist., Div. 3 Sept. 14, 2016) (unpublished) is a case where a litigant prevailed solely on a jury submitted tort constructive fraud claim, obtaining both compensatory and punitive damages on the fraud count. Then, that litigant tried to shoehorn  into a fee recovery based on some contractual fees clauses in an Operating Agreement and Admission Agreement.  Neither the trial nor appellate courts would allow any fee recovery based on this theory.  It was clear litigant won on a tort theory, electing to seek punitive damages at trial but then trying to shift to a contractual theory for purposes of fee recovery.  This cacophony did not resound with any of the

Cacophonie.  1878.  Library of Congress.

courts considering the case, resulting in an affirmance of the fee denial in a 3-0 decision authored by Justice Ikola.