Moss Construction Co. v. Wulffsohn

California Court of Appeal Feb 18, 1953 No. Civ. 19283Published

Before: Moore

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Holding. The court held that in a contract dispute involving a counterclaim, the party awarded the net judgment is the sole "successful party" entitled to attorney's fees under the contract. Consequently, the trial court erred in awarding attorney's fees to both parties.

Issues

Whether both parties to a building contract can be considered the "successful party" entitled to attorney's fees when both the plaintiff and the defendant prevail on their respective claims.
Whether the party awarded a net judgment is the prevailing litigant for the purpose of recovering attorney's fees.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“Where such is the case it has uniformly been held that the party awarded the net judgment is the prevailing litigant and thus the successful party.”

“It follows that since defendants were neither “successful” nor “awarded judgment” the allowance to them of attorney’s fees was erroneous”

MOORE, P. J.

Moss Construction Company, a corporation, sued to recover the sum of $6,085 allegedly due under the terms of its building contract with defendants. It demanded also attorney’s fees in the sum of $1,500 and the foreclosure of its mechanic’s lien. Defendants denied the indebtedness in any amount and by way of counterclaim sought $4,842.50 as damages for alleged faulty construction and delay in completion of the building. They, also, demanded a reasonable sum as attorney’s fees.

The court made its finding that plaintiff was entitled to recover $4,054.29 on its complaint, that defendants were entitled to an offset of $1,400 on their counterclaim and that therefore plaintiff was entitled to a net judgment in its favor of $2,654.29. The court further adjudged that “each party . . . is entitled to $1,000 attorney’s fees.”

On this appeal each party contends that the trial court erred in awarding attorney’s fees to the other.

The basis for the award of attorney’s fees is found in section 1032 (subd. a) of the Code of Civil Procedure and in paragraph 17 of the building contract executed by the parties. It is there provided that “should either party hereto bring suit in court to enforce the terms hereof, any judgment awarded shall include court costs and reasonable attorney's fees to the successful party.” Thus the sole ques

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tion for decision is whether both parties were the “successful party” or whether only one was successful and if so which of the two? The trial court found that.since plaintiff was “successful” in establishing its cause of action as set forth in the complaint and that since defendants were “successful” in recovering pursuant to their counterclaim, both were entitled to counsel fees. Such determination, however, is not binding on this court. Inasmuch as the interpretation to be given the building contract is determined as a matter of law solely from the instrument itself, this court is free to adopt its own construction.

(Texas Co.

Todd,

19 Cal.App.2d 174, 185 [64 P.2d 1180].)

Moss Construction Co. v. Wulffsohn

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MOORE, P. J.

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