Right to Contractual Attorney Fees is Independent of Cost Award

An Appellate Court's Order that Each Side Was to Bear Their Own Costs on Appeal Had No Effect Upon the Right to Contractual Attorney Fees

Butler-Ripp v. Lourdeaux (Aug. 28, 2007, A114667, First District, Division One)
11 p. opinion

This action began as a commercial lease dispute between the appellants, Rosanna and Wallace Lourdeaux, and the respondents, Lili Butler-Rupp and Lili Butler-Rupp Studio, Inc. In a previous appeal this Court of Appeal affirmed an award of contract damages to the respondents and stated that the parties would bear their own costs on appeal.

The lease that was the subject of the contract dispute contained an attorney fee provision. After the first appeal, the respondents brought a successful motion in the trial court for an award of the attorney fees they incurred for the first appeal. The appellant brought this second appeal arguing that the trial court lacked jurisdiction to award the appellate attorney fees because the appellate court had ordered each side to bear their own costs on appeal.

Under contractual attorney fee provisions the party who prevails on the contract portion of a mixed action is entitled to attorney fees. Awards of costs on appeal are authorized by costs statutes. A contractual right to attorney fees is completely independent of any costs statute. The appellate court's order concerning the costs of appeal had no effect upon respondents' right to contractual attorney fees. The trial court retained jurisdiction to determine the prevailing party under the contract and to make an award of all attorney fees, whether incurred during the trial or on appeal, based upon that determination.
Justice Swager wrote the opinion. Acting Presiding Justice Stein and Justice Margulies concurred.