Allocation/Consumer Statutes: Prevailing Dealer In BMW Dispute Properly Awarded 30% Of Requested Fees Based On Dealer’s Own Allocation

 

Dealer Did A Smart Thing Here In Apportioning Fees Between Claims.

   Tun v. Wells Fargo Dealer Services, Case No. D070447 (4th Dist., Div. 1 Nov. 7, 2016) (published) is a nice illustration of a smart move that a prevailing party undertook under a fee-shifting statute in its fee petition papers.  That move was to allocate fees between claims so that both the trial and appellate courts could make an easy allocation of fees to the winning party.

    Dealer prevailed against a car purchaser bringing a multi-count complaint alleging that car dealer did not reveal the extent of prior collision damage to a BMW.

 

   Library of Congress.  February, 1942.¹

     Jury found for dealer, who then sought to recoup $245,600 in fees.  However, recognizing that different claims were involved, dealer smartly allocated fees between contractual/Automobile Sales Financing Act (ASFA) claims and other claims.  Dealer allocated 30% to the ASFA claims.  In granting fees, the lower court found that dealer did not prevail for fee-shifting purposes on the other claims but did prevail under ASFA, awarding the fully-apportioned 30%, namely, $80,359.

    The appellate court affirmed.  Plaintiff challenged that no allocation was made, but the reviewing court observed that dealer had done it in the trial court and was awarded the apportioned 30%--an amount found fully justified by the appellate court too in affirming the lower court’s fee order in favor of dealer.

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1_{”Conservation. Scrap iron and steel. As part of their campaign to collect goods for the Victory Campaign, Boy Scouts of Troop 121 of the United Church of Van Nest, Bronx, New York are shown pushing in one of their collection items, an old Ford jalopy, into the Westchester Auto Wrecking Company yard at 1400 Blondell Avenue in the Bronx. Shown in the photo pushing the car are Scouts of Troop #121 while Edward G. Bellmaire, Scoutmaster, David Lanoff of the wrecking company, and Frank O. March, Vice Chairman of the Bronx Salvage Campaign Committee look on.”  Edward Gruber, photographer.  Office of War Information.}