Mst Farms v. C. G. 1
Decision Date | 31 August 1988 |
Docket Number | No. F009639,F009639 |
Citation | 251 Cal.Rptr. 72,204 Cal.App.3d 304 |
Court | California Court of Appeals Court of Appeals |
Parties | MST FARMS et al., Plaintiffs and Respondents, v. C.G. 1464 et al., Defendants and Appellants. |
The sole issue on this second appeal in this action is whether a trial court has jurisdiction to award attorney fees to a prevailing party on appeal, as costs pursuant to CIVIL CODE SECTION 17171, notwithstanding the absence of explicit direction to do so from the appellate court either in its opinion or in its remittitur.
In the first appeal to this court, in case No. F005857, MST FARMS et al. (plaintiffs) appealed from a judgment in favor of C.G. 1464 et al. (defendants). In an unpublished opinion affirming the judgment below, this court ordered, "Defendants are awarded their costs on appeal." Accordingly, our remittitur provided, "Respondent(s) to recover costs." After the remittitur was filed, defendants, pursuant to section 1717, filed a motion in the superior court requesting additional attorney fees incurred in defending the appeal. Following a hearing the trial court denied defendants' request for additional attorney fees, stating in part:
We first note that while it is true defendants, in their reply brief in the first appeal, did request that this court "award Respondents costs and attorneys' fees on appeal," no argument was made and no authority was cited supporting defendants' entitlement to attorney fees on appeal. No contractual provisions which may have supported defendants' request for an award of attorney fees as an element of costs under section 1717 were called to our attention in the prior appeal and, indeed, none have been called to our attention in the present appeal. This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record. (People v. Warren (1963) 219 Cal.App.2d 723, 726, 33 Cal.Rptr. 552; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283, 188 Cal.Rptr. 123.) Under these circumstances, when we awarded costs on appeal to defendants in case No. F005857, we could have had in mind only those costs provided for in California Rules of Court, rule 26(c) 2 which makes no provision for attorney fees. Furthermore, costs on appeal do not normally include attorney fees. (See De La Cuesta v. Superior Court (1984) 152 Cal.App.3d 945, 950, 200 Cal.Rptr. 1.) Contrary to plaintiffs' present contention, however, defendants' entitlement to attorney fees on appeal under section 1717 was neither considered nor decided by us in the prior appeal.
In holding that it did not have jurisdiction to grant defendants' motion for attorney fees on appeal pursuant to section 1717, the trial court specifically relied upon American City Bank v. Zetlen (1969) 272 Cal.App.2d 65, 76 Cal.Rptr. 898. In Zetlen, the prevailing party on appeal was entitled to attorney fees by virtue of a contractual provision in a promissory note. The Court of Appeal affirmed the trial court's denial of attorney fees on appeal, holding that the superior court had no jurisdiction to grant attorney fees where no authority was conferred by the appellate court in its opinion or remittitur. (Id. at pp. 69-70, 76 Cal.Rptr. 898.)
However, in T.E.D. Bearing Co. v. Walter E. Heller & Co. (1974) 38 Cal.App.3d 59, 112 Cal.Rptr. 910, after first noting that the prevailing party's right to attorney fees under section 1717 is a statutory right ( T.E.D. Bearing Co., supra, at p. 64, 112 Cal.Rptr. 910), the Court of Appeal explained:
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