Tort Of Another Claim Had Been Stricken Earlier By A Different Judge And There Was No Indication Seller Actually Incurred Any Fees To Her Attorneys.
Boykin v. He, Case No. A149020 (1st Dist., Div. 2, January 31, 2019) (unpublished), was a very convoluted case considered on appeal by the First District, Division 2, in which a jury had determined that a buyer would be awarded specific performance in a residential sale transaction and that seller, who brought a cross-complaint against a dual agent and affiliated broker, should be awarded $350,021 if seller had to transfer the house to buyer or $17,500 if seller kept the house. The judge presiding over the trial then allowed seller to keep the house, as well as awarding her $350,021 and imposing tort of another fees against the agent and broker to the tune of $794,379 (inclusive of a multiplier), even though an earlier, different judge had stricken the tort of another claim from a case. Agent and broker were shocked, appealing.
Good thing they did. The 1/2 DCA determined that only $17,500 was the proper damage award to seller because she kept the house, in line with what the jury said (not what the trial judge did). Because tort of another fees are damages (not classic fees claimed generally through a postjudgment motion), they were improperly awarded because the earlier judge had stricken them from the case—and a second judge cannot overrule what a first judge did. Tort of another fees have to be pled and proven, and they had been excised from the case. Beyond that, there was no proof that seller actually incurred any fees with respect to her attorneys. The appellate court firmly believed the trial judge acted inconsistently from the jury’s verdict and essentially overturned what a prior judge had done.
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