. . . And So Party Suing and Prevailing On the Promissory Note Could Recover Fees Without Initiating Mediation
We have a sidebar category, "Mediation: Condition Precedent," reflecting the fact that many contracts, such as real estate purchase and sale agreements, and listing agreements, now require a party to mediate before filing a lawsuit, as a condition precedent to the recovery of attorney's fees. File the next case under: "condition precedent: not." Keith v. Shuttleworth, Case No. D058881 (4th Dist. Div. 1 June 14, 2012) (McConnell, P.J., author) (not for publication).
Plaintiff sued defendant for breach of a promissory note, and defendant cross-complained for breach of a listing agreement. The trial court awarded plaintiff $71,721 for breach of the note, $219,171.18 for fees, and $19,205.34 for other costs. Defendant/cross-complainant lost its cross-claim to recover a commission, and appealed.
One of defendant's arguments was that the listing agreement required mediation first in order for plaintiff to be able to recover attorney's fees later. But you already know the answer to that: plaintiff sued on the promissory note, not the listing agreement, and the promissory note, though it did have an attorney's fees provision (lucky for the plaintiff), did not require mediation (lucky again for the plaintiff).
But didn't the promissory note "arise from" the listing agreement transaction? Issue forfeited because not timely raised. Besides, said the court, we are satisfied that the "complaint for breach of the promissory note is not an action under the Listing Agreement."
Judgment affirmed.
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