All Intervening Procedural Steps Were Validated, But Appellate Court Did Not Award Defendant Costs On Appeal.
In Morschauser v. Continental Capital, LLC, Case No. E062278 (4th Dist., Div. 2 Dec. 12, 2016) (unpublished), a defendant corporation successfully obtained summary judgment against plaintiff and then moved to recover $133,644.50 in attorney’s fees and costs from losing plaintiff. Plaintiff did not oppose, but filed a request for continuance by noting that defendant was a suspended corporation and could not proceed. The trial judge granted the attorney’s fee request in full, triggering an appeal by plaintiff.
The fee order was affirmed. On its own motion, the appellate court addressed this incapacity by offering respondent/defendant one of three options: (1) present proof it was not suspended; (2) present proof a certificate of revivor had been filed; or (3) file a declaration detailing when a certificate of revivor was going to be filed and why it had not been filed already. Defendant winning the fee award chose option 3 and, a little over three months later, submitted a copy of the certificate showing defendant was no longer suspended/was in good standing. Obtaining the certificate of revivor had the legal effect of validating the prior procedural steps along the way as far as the defense fee award and appeal efforts were concerned.
However, because defendant only took revival steps after plaintiff’s briefing on appeal was completed and in response to the appellate court’s inquiry on incapacity options, the 4/2 DCA panel refused to award routine costs of appeal to defendant, although observing this did not impact its ability to seek appellate fees on other fee entitlement bases.
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