Mabee v. Nurseryland Garden Centers, Inc.

• Decision Date: 17 January 1979
• Court: California Court of Appeals Court of Appeals
• Parties: John C. MABEE, Plaintiff and Respondent, v. NURSERYLAND GARDEN CENTERS, INC., Defendant and Appellant. Civ. 16394.

Page 31

152 Cal.Rptr. 31

88 Cal.App.3d 420

John C. MABEE, Plaintiff and Respondent, v. NURSERYLAND GARDEN CENTERS, INC., Defendant and Appellant.

Civ. 16394.

Court of Appeal, Fourth District, Division 1, California.

Jan. 17, 1979.

Klitgaard & Jones, Inc., and R. J. Klitgaard, San Diego, and Ellis J. Horvitz Law Corp., and Ellis J. Horvitz, and Marc J. Poster, Encino, for defendant and appellant.

Peterson, Gamer, Muns, Granton & Price, and Peter P. Gamer, San Diego, for plaintiff and respondent.

STANIFORTH, Associate Justice.

Nurseryland Garden Centers, Inc. (Nurseryland) appeals from a post-judgment order awarding $21,988.75 attorney fees to John C. Mabee (Mabee). ¹ The issues presented here surface in this factual-procedural matrix.

Mabee sued Nurseryland for breach of a written lease. The complaint pleaded inter alia an attorney fees clause contained in the lease providing:

"Should either party commence any legal action or proceeding against the other based on this Lease, the Prevailing party shall be entitled to an award of attorney's fees as set by the Court, including costs of appeal, if any." (Emphasis added.)

The prayer asked for "reasonable" attorney fees.

Upon jury trial Mabee presented no evidence of the reasonable attorney fees incurred in the action nor did he argue the issue to the jury or submit jury instructions on the matter. The attorney fee clause was in evidence as part of the lease agreement. The jury returned a verdict of $44,178 in favor of Mabee. After the jury was excused, Nurseryland's attorney stated he would file motions for new trial and for judgment notwithstanding the verdict. Mabee's attorney then informed the court: "There is also the matter of the attorney's fee clause in the Lease. I will notice my motion." The court then responded, "The verdict will be entered. Allright Do you consider you both lost or both won?" Nurseryland's counsel, Mr. Klitgaard, responded: "I know I lost." Nurseryland did not object to the proposed post-judgment hearing on attorney fees.

On that same day (April 30, 1976) the clerk entered the judgment on the verdict and notified counsel thereof in writing. A series of post-judgment motions followed. On May 7, 1976, Mabee filed his memorandum of costs. Nurseryland opposed the cost bill but after hearing the court entered its order taxing costs and fixing the amount of $2,552.16.

On May 17, 1976, Nurseryland filed its motion for judgment notwithstanding the verdict and one week later, its motion for new trial. Before these motions could be heard and after several continuances Nurseryland withdrew both motions (June 11, 1976) but not before it filed its notice of appeal (June 7, 1976) from the judgment entered on the jury verdict.

On June 28, 1976 after the notice of appeal was filed Mabee by motion sought an order awarding reasonable attorney fees under the appropriate clause in the lease agreement. Nurseryland opposed the motion as untimely, beyond the court's jurisdiction and in derogation of Nurseryland's right to have the issue tried by the jury. ² After hearing, the trial court awarded Mabee reasonable attorney fees for services performed "to and including June 21, 1976" in the sum of $21,988.75. The document was entitled "Judgment After Jury Trial".

Nurseryland appeals contending: (1) Mabee lost his claim to attorney fees when he failed to pursue that issue at trial, (2) Nurseryland urges the trial court lost jurisdiction to amend the judgment after entry of the judgment and filing of the notice of appeal, and (3) the trial court lacked the intent and authority and the grounds for awarding the attorney fees as cost.

In analyzing Nurseryland's contentions, our point of beginning is this hornbook rule: "(T)he extent of lessors' (Mabee's) right and lessee's (Nurseryland's) duty (with respect to a reasonable attorney fee) is measured by the terms of their agreement." (Genis v. Krasne, 47 Cal.2d 241, 248, 302 P.2d 289, 293.)

The cases collected in Heidt v. Miller Heating & Air Conditioning Co., 271 Cal.App.2d 135, 138, 74 Cal.Rptr. 695; Robinson & Wilson, Inc. v. Stone, 35 Cal.App.3d 396, 414, 110 Cal.Rptr. 675, and 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 119 et seq., pp. 3270 et seq., demonstrate an almost infinite variety of attorneys' fee clauses. Each gives rise to separate and distinct rights and duties. Therefore of necessity we must focus on this precise language of this attorney fee provision. Its plain explicit unambiguous language evidences this intent. It is the Court, i. e. the Judge, not the jury who determines the right to and amount of attorney fees.

A legion of cases without comment equate "court" with the "judge" ³ in interpreting attorney fee clauses. Black's Law Dictionary (4th ed. 1951) page 425 states that the word "court" and "judge" or judges are frequently used synonymously in statutes. (See also Newby v. Bacon, 58 Cal.App. 337, 339, 208 P. 1005.)

Further the words when viewed in context point unmistakably to a similar conclusion. The attorney fees are to "includ(e) costs of appeal, if any." Therefore, the clause here clearly contemplates not only attorneys' fees earned on trial, but also post-judgment lawyer fees including those fees incurred on appeal. The jury has long been discharged when the Court would assess such fees. There can be no doubt but that it is the Judge, i. e. the "court" that determines this issue. Moreover, the court's authority to determine and award attorney fees is to the "prevailing party" as an incident to that party's success. Winning the underlying cause of action on trial is the Sine qua non. (See Huber v. Shedoudy, supra, 180 Cal. 311, 314, 181 P. 63.) This language presupposes the identification of the prevailing party. This can only be discovered at the close of the trial of underlying cause of action not before. To require parties to a lawsuit to submit evidence on attorney fees and to argue that matter to the trier of fact Before the "prevailing party" has been ascertained does not make procedural sense.

Nurseryland fails to distinguish between the allowance of attorney fees to the prevailing party as an incident to the principal cause of action and other distinct factual situations where attorney fees are in whole or in part of the cause of action. Witkin distinguishes between an award to the prevailing party against the losing party as an incident to judgment and six other distinct species of award of attorney fees. (4 Witkin Cal. Procedure (2d ed. 1971) Judgment, § 118, pp. 3269-3270.)

For example, where attorney fees are incurred in a prior action, or sought in a proceeding as damages as for example in false imprisonment or malicious prosecution suits or where recoveries sought in an action by an attorney against his client for an agreed or a reasonable fee, then the claim for attorney fees are part of the damage sought in the principal action. Only in such circumstance would the attorney fee be required to be pleaded and proven as any other item of damages at trial. No similar procedural and evidentiary base is required where "the attorney fee was not the cause of action but an incident to it." (Huber v. Shedoudy, supra, 180 Cal. 311, 314, 181 P. 63, 64.)

Moreover,

" '. . . The averment that the fee claimed was a reasonable amount is not necessary (Carriere v. Minturn, 5 Cal. 435); . . . As an averment was unnecessary, so also was a finding. The conclusion of law that defendant was entitled to recover attorney's fees rested upon the provisions of the mortgage, and the court could determine what amount would be reasonable without hearing any testimony thereon. (Citations.)' "

(Ibid.)

Attorney fees are not like the usual item of damages, for the court may allow a reasonable attorney fee in the judgment without hearing evidence or making a finding as to the amount of such fee. (Genis v. Krasne, supra, 47 Cal.2d 241, 246, 302 P.2d 289.) " 'The experienced trial judge is the best judge of the value of professional services rendered in his court, . . .' " (Serrano v. Priest, 20 Cal.3d 25, 49, 141 Cal.Rptr. 315, 328, 569 P.2d 1303, 1316), and "the starting point of every fee award, . . . must be a calculation of the attorney's services in terms of the time he has expended on the case" (City of Detroit v. Grinnell Corp. (2d Cir. 1974) 495 F.2d 448, 470; cited with approval in Serrano v. Priest, supra, 20 Cal.3d at p. 48, fn. 23, 141 Cal.Rptr. 315, 569 P.2d 1303).

What is required is pleading and proof of the contract provision. Attorneys' fees cannot be allowed to the successful litigant "without pleadings and proof (admission) that there is a contract provision for them." (Genis v. Krasne, supra, 47 Cal.2d 241, 246, 302 P.2d 289, 292.)

In Citizens Suburban Co. v. Rosemont Dev. Co., 244 Cal.App.2d 666, 684, 53 Cal.Rptr. 551, 563, the court reasoned that "(a)lthough the complaint did not in terms pray for litigation expenses, it sought specific performance of the . . . agreement and incorporated the agreement . . . by reference. The agreement was placed in evidence. Under these circumstances there was adequate pleading and proof of the contract provision under which the award was made." Thus, as was said in Genis v. Krasne, supra, 47 Cal.2d 241, 246-247, 302 P.2d 289, 292, the "lessors, in the prior action, properly set up their claim for attorneys' fees before it could be known whether there would occur an essential fact (lessors' prevailing in the prior action) which would give rise to a duty of lessee to pay attorneys' fees."

A recent California Supreme Court decision defined "prevailing party" in these terms: " 'As used in this section (Civ.Code, § 1717) "prevailing party" means the party in whose favor Final judgment is Rendered.' (Italics added.)" (International Industries Inc. v. Olen, 21 Cal.3d 218, 222, 145 Cal.Rptr. 691, 693, 577 P.2d 1031, 1033.)

These authorities make untenable Nurseryland's contention it was entitled to a jury trial on the...