Schwartz v. Schwartz

• Decision Date: 09 March 1970
• Citation: 85 Cal.Rptr. 45,5 Cal.App.3d 133
• Court: California Court of Appeals Court of Appeals
• Parties: Morris SCHWARTZ, Plaintiff, v. Fred SCHWARTZ, Defendant and Appellant, Lawrence L. Light, Petitioner and Respondent, R. E. Allen, as Receiver, etc., Defendant and Respondent. Civ. 33989.

Page 45

85 Cal.Rptr. 45

5 Cal.App.3d 133

Morris SCHWARTZ, Plaintiff, v. Fred SCHWARTZ, Defendant and Appellant Lawrence L. Light, Petitioner and Respondent R. E. Allen, as Receiver, etc., Defendant and Respondent.

Civ. 33989.

Court of Appeal, Second District, Division 4, California.

March 9, 1970.

Rehearing Denied April 6, 1970.

Fred Schwartz, in pro per, defendant and appellant.

Lawrence L. Light, in pro per, respondent.

JEFFERSON, Acting Presiding Justice.

Appellant Fred Schwartz appeals from two orders of the superior court made on May 6, 1968, in Department 63 of that court. One order directed the payment, from assets of a business in which appellant has an interest, of attorney's fees in the amount of $3,757.34 to respondent Lawrence Light. The other order retaxed costs on a prior appeal involving the same attorney fee. ¹

The orders in question were made in an action brought by appellant's brother Morris Schwartz (now deceased) against appellant for dissolution of their partnership business known as the Central Tire and Salvage Company (hereafter Central Tire). On January 2, 1960, respondent was employed by appellant and his brother to prosecute on behalf of the business an action against the Coast Tire and Salvage Company, et al. (hereafter Coast Tire). The action was to enforce the payment of the balance due Central Tire on the sale of used tires to Coast Tire. The written employment agreement with respondent provided that he would be paid for his services a contingency fee of 25% Of any sum recovered 'whether by compromise settlement or judgment.'

Pursuant to the agreement, respondent filed an action against Coast Tire. After settlement negotiations did not materialize and Coast Tire failed to plead, their default was taken and, on August 3, 1960, judgment was obtained thereon in the amount of $15,116.34.

In the meantime, shortly after the action against Coast Tire was filed, R. E. Allen was appointed receiver in the partnership dissolution proceedings to take control and management of the business of Central Tire.

On November 14, 1960, the defendant judgment debtors noticed a motion to set aside the judgment. Respondent filed his own affidavit in opposition to the motion and secured an affidavit in opposition from appellant's partner Morris Schwartz. Appellant refused to oppose the motion. On December 2, 1960, the court denied the motion to vacate. However, a few days later Coast Tire made application to reopen the matter and to renew the motion upon the ground of newly discovered evidence. The evidence consisted of a letter dated November 12, 1960, signed by appellant and addressed to attorney Phill Silver. In the letter appellant stated that he wanted respondent removed as attorney on the case and that he did not want the judgment enforced at that time against Coast Tire. The court, on the basis of the letter, granted Coast Tire permission to reopen and subsequently vacated the judgment. Whereupon, an appeal was undertaken by the receiver on behalf of Central Tire.

During the pendency of the appeal, respondent filed a report with the court requesting attorney's fees and accompanied such request with a motion to withdraw from the case in view of his conflict with appellant. The court granted the motion to withdraw but deferred the matter of attorney's fees.

On April 2, 1962, the appellate court (in Schwartz v. Smookler, 202 Cal.App.2d 76, 20 Cal.Rptr. 507) reversed the order vacating the default judgment, and the judgment was reinstated.

On July 2, 1962, respondent's application for attorney's fees was heard together with a petition filed by the receiver R. E. Allen requesting that the court determine and fix reasonable attorney's fees to be paid to respondent for his services in the case against Coast Tire and in connection with two other matters which, in the interim, respondent handled for the receiver in behalf of Central Tire. All interested parties were present at the hearing and respondent testified at length concerning the services he rendered. The court concluded that respondent was entitled to attorney's fees in the matter involving Coast Tire in the sum of $3,851.64 (less any advances or credits in favor of the receiver). The sum awarded represented 25% Of the amount of the judgment. Before making its order, the court requested and got the approval of R. E. Allen and Morris Schwartz. Appellant was the lone dissenter.

The judgment against Coast Tire was subsequently sold to the highest bidder by the receiver for the sum of $10,001.00, and the sale was confirmed by the court on January 2, 1964. Respondent thereafter noticed a motion to compel the receiver to comply with the order of July 2, 1962. The receiver held up payment because of objections voiced by appellant. On November 30, 1964, a hearing was held on respondent's motion. The court, after hearing arguments, refused appellant's request to reduce the amount awarded in the order of July 2, 1962, and further ruled that the order was a final order. An appeal was taken by appellant from the November 30, 1964 order and, on December 7, 1967, this court (in an unpublished opinion in Schwartz v. Light, 2d Civil 30244) reversed the November 30, 1964 order solely on the procedural ground that appellant had not received proper notice of the hearing. The question was never reached whether the July 2, 1962 order was a final order.

Respondent thereafter noticed two motions: for payment of attorney's fees pursuant to the order of July 2, 1962, and to have costs on the appeal in Schwartz v. Light, 2d Civil No. 30244, retaxed and assessed against the receivership. After a langthy hearing at which both motions were hears, the court on May 6, 1968, entered its orders and findings. It is from these orders that appellant brings the present appeal.

The minutes of the court of May 6, 1968, recite that the court made the following findings and orders on that date:

'The court finds that on July 2, 1962, this court duly made its order adjudging and determining that Lawrence L. Light (Respondent) was entitled to attorneys fee from R. E. Allen, Receiver in the sum of $3851.64 less advances and credits, that no appeal was taken from said order and the same has long since become final and is now binding on this court. The court further finds that R. E. Allen is entitled to credit for advances and credits in the sum of $94.30 and that Lawrence L. Light is now entitled to receive the sum of $3757.34 without interest. The court finds that said sum of $3757.34 shall not bear interest prior to this date because prior to that date said sum was not a liquidated sum until the amount of balances and credits had been determined. * * * The Receiver R. E. Allen is hereby authorized, ordered and directed to pay to Lawrence L. Light the sum of $3,757.34 forthwith.

'* * * The court finds that the costs of the reporter's transcript on appeal was $78.65 rather than the $400.00 as claimed, and costs on appeal are therefore retaxed in the sum of $281.20. The court further finds that R. E. Allen as receiver was not a party to such appeal and that said Receiver should not be charged with such costs on appeal, but that the same are properly a charge against Lawrence L. Light, respondent therein.'

Appellant contends that the order respecting attorney's fees is based on the erroneous finding that the order of July 2, 1962, which awarded such fees, was a final appealable order. As will be observed from the following discussion, we agree with appellant that the court below erroneously concluded that the order of July 2, 1962, was a final appealable order. However, we further conclude that, for the same reasons that the 1962 order was not final, the order respecting attorney's fees of May 6, 1968, is also nonappealable. Consequently, appellant's appeal from such order must be dismissed.

'Generally no appeal can be taken except from a final order or judgment as defined in the statutes and developed in the case law. Code Civ.Proc., § 963; Lavine v. Jessup, 48 Cal.2d 611, 613, 311 P.2d 8. It is recognized, however, that the term 'a final judgment' as used in the statute is not limited to the final judgment entered in an action (Sharon...