Arbitration/Fees: Fourth District, Division 3 Rules That Trial Court Erred By Denying Plaintiffs’ Motion For Post Arbitration Attorney Fees

 

It’s Possible To Recover Post-Arbitration Fees, Without Being A Prevailing Party In the Arbitration

     This dispute, concerning the sale of a house, has been knocking around in the courts and in arbitration for several years. Toal v. Tardif, G044823 (4^th Dist. Div. 3 March 29, 2012) (Ikola, J.) (not to be published). The arbitrator awarded plaintiffs $65,284, but found they were not entitled to attorney fees because there was no prevailing party in the arbitration. However, in Toal I, the Court of Appeal reversed the judgment confirming the award and remanded to determine whether the arbitration was binding. Other post-arbitration proceedings followed, and eventually, judgment was entered and affirmed in Toal II.

     Plaintiffs moved in the trial court for an award of about $32,000 in attorney fees they incurred to obtain confirmation of the judicial award. Relying on the arbitrator’s finding that there was no prevailing party for purposes of the arbitration, the trial court denied the motion for postarbitration fees.

     The Court of Appeal reversed, because the trial court’s analysis “fails to account for the plaintiffs’ status as prevailing parties in the postarbitration judicial proceedings (which resulted in the granting of their petition for judicial confirmation of the arbitration award and which were greatly prolonged by defendants’ allegation they never consented to or ratified the arbitration agreement).”

     Though the Court of Appeal does not belabor the point, we think the language of the contractual fee provision may be relevant: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs . . . .” No wonder that the Court of Appeal concluded that the plaintiffs were the prevailing parties “in those proceedings” as a matter of law.

     Would the result have been less clear-cut if the word “proceeding” had been left out of the fee provision? ''The most effective way of shortening law language,” wrote the late Prof. David Mellinkoff, “is for judges and lawyers to stop writing.'' However, sometimes the “contagious verbosity” that Prof. Mellinkoff so entertainingly railed against, seems to save us lawyers from ourselves.

     Undoubtedly the tedious proceedings must have taken their toll, but eventually Toal succeeded in ringing the bell for attorney’s fees.