Lower Court Should Have Credited Parties’ Admissions, With No Invited Error Based On Record Before The Lower Court.
If you, as a litigant, make an admission as to fee entitlement, but then try to change course based on a trial court’s different path, you may be bound by the admission in an appeal and get a reversal if the trial court fails to honor your admission.
Arkius, Inc. v. Yeh, Case No. B278568 (2d Dist., Div. 1 March 21, 2019) (unpublished) is a case in which this happened.
After prevailing on the merits, plaintiff moved for contractual attorney’s fees recovery under two contracts. The lower court awarded fees under one ($65,336.83 out of a requested $104,393.53), but it denied requested fees altogether on the second contract. In the paperwork underlying the fee motion, defendants admitted that there was fee entitlement under both contracts. However, at the hearing, the trial judge denied the fees on the second contract because the complaint attachment of the contract did not contain the fee provision.
Plaintiff appealed, and the 2/1 DCA reversed. The reason was that the parties’ admission in the fee proceeding really conceded fee entitlement. This meant that there was no invited error despite the missing page because of the parties’ admission of entitlement. Aside from a remand to calculate fees owed on contract two, the amount of fees for contract one had to be relooked at because the future recovery on contract two could impact the prevailing party analysis on the whole gestalt.
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