Fee Clause Interpretation: Plaintiff Purchaser Obtaining Specific Performance In A Real Estate Transaction Properly Awarded Fees Under A Contractual Fees Provision Against Losing Seller

Closing Costs Provision Was Distinct From Litigation Prevailing Party Provision.

            The next case, Classic Auto Repair, Inc. v. Ida, Case No. B308002 (2d Dist., Div. 8 Mar. 8, 2023) (unpublished) is a real estate primer on contractual interpretation on allocation of attorney’s fees exposure with respect to litigation and closing costs.  The plaintiff purchaser won attorney’s fees in a specific performance action under a contractual fees clause, with the losing party arguing that a different “closing costs” provision prevented a fee award because both parties agreed to bear their own fees as far as closing.

            The appellate court did not buy appellant’s argument.  The paragraph relied on by appellant only applied to closing fees, while a different paragraph did allow for recovery of fees incurred in court proceedings.  In reaching this conclusion, because co-contributor Mike is a real estate transactional attorney among other practice areas and always searches for appellate insights into transactional documents, the appellate panel observed that headings and titles can provide insight into the parties’ intent—with the operative provision entitled “Attorneys’ Fees” and the inapt provision entitled “Closing Costs.”