Result Was That Appellate Court Could Not Entertain Challenge To $187,000 Fee Award.
For you readers out there which follow our post, we have many, many times observed that practitioners should independently appeal any separate fee awards no matter when made just to be safe. This next case illustrates why this needs to be done because it may otherwise deprive the litigant of appellate review.
Nellie Gail Ranch Owners Assn. v. McMullin, Case Mp. G051244 (4th Dist., Div. 3 Oct. 3, 2016) (unpublished) involved a case where HOA won a battle with homeowners who built a retaining wall and sports court on common area property without HOA’s consent. The trial judge ordered homeowners to remove the retaining wall and sports court, later awarding $187,000 in fees and $10,000 in costs under the Davis-Stirling fee-shifting statute and routine costs statute.
Homeowners appealed the fee/costs award, but the appellate court—in a 3-0 decision penned by Justice Aronson—concluded it did not have jurisdiction to entertain the challenge. Homeowners’ problem was in not appealing from the separate fees award, but simply appealing from the judgment. The fee award was separately appealable. But homeowners tried to argue there was a twist because the lower court later entered an amended judgment including the fees and costs. However, the appellate court decided that the appeal could not subsume this later amended judgment because it was not a clerical amendment giving rise to a nunc pro tunc “relation back.” (Colony Hill v. Ghamaty, 143 Cal.App.4th 1156, 1171-1172 (2006).)
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