$143,775 Was The Fee Tally/$11,438 Was The Costs Tally, With The Appellate Court Chiding Losing Plaintiff For Disparaging Trial Judge And Engaging In “Apophasis.”
In Mayhew Plaza Woodland Hills II, LLC v. Kelsey, Case No. G055668 et al. (4th Dist., Div. 3 May 30, 2019) (unpublished), plaintiff purchaser sued defendant seller and defendant agent Kelsey for fraud in connection with the sale of a Hemet shopping center when plaintiff was facing a 1031 exchange deadline in order to avoid a tax hit. The jury determined that the case was barred by the statute of limitations. The trial judge awarded defendant Kelsey $143,775 in attorney’s fees and $11,438 in costs based on provisions in the written purchase agreement.
The 4/3 DCA, in an opinion authored by Justice Bedsworth, affirmed the fee award.
The purchase agreement had a fees clause as well as a clause indicating that the agreement applied to heirs, successors, agents/representatives, and assigns. Plaintiff was judicially estopped to deny that defendant Kelsey was an agent, because it did not object to a jury instruction to the effect that Kelsey was an agent. So, fee entitlement was established.
However, plaintiff/appellant chose an unwise tactic to disparage the trial judge, but then engaged in “apophasis” by then implying that the trial judge’s personal relationship with several people directly or indirectly involved with the case led to the adverse result. (In a footnote, “apophasis” was explained as a rhetorical device through which the speaker can deny a subject while bringing it up, with an example being “Far be it from me to suggest ….”). The 4/3 DCA panel did not countenance the disparagement at all, observing it was a “shabby effort to deflect responsibility” by playing the personal relationships card and defendant was “passing the buck” in an ill-advised attempt to attribute a negative outcome to a judge who presided well over a complex case.
Comments