George S. Nolte Consulting Civil Engineers, Inc. v. Magliocco

Opinion

CHRISTIAN, J.

George S. Nolte Consulting Civil Engineers, Inc., judgment creditor of respondent Emil Magliocco, appeals from an order directing entry of satisfaction of judgment, releasing a lien, and awarding damages and attorney’s fees to respondent (see Code Civ. Proc., § 675).

Respondent owned realty in Woodside. Appellant did engineering work for a proposed development of the property. Litigation ensued. In December 1970, the parties approved and the trial court entered a stipulated judgment. The judgment ordered respondent to pay appellant $6,000, and provided for a $4,000 contingent liability if appellant’s plans

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were used to develop the property. The stipulated judgment provided in relevant part: “[PJlaintiff, George S. Nolle Consulting Civil Engineers, Inc., a corporation have and recover of and from defendant Emil Magliocco, the sum of $6,000.00; provided, however, that said judgment shall be increased by the additional sum of $4,000.00 at such time as the real property ... is developed substantially in accordance with and with the use of plaintiff’s plan.” Respondent paid appellant the $6,000 shortly after the trial court entered the judgment. The court entered a partial satisfaction of judgment as to that amount, which is not at issue here.

Respondent never received a full set of plans from appellant. After entry of the stipulated judgment, respondent conveyed all of the subject realty to various third parties. These property owners never received appellant’s plans. The property was developed in a manner inconsistent with appellant’s plans. The plans were not used in developing the property. Respondent had no intention of reacquiring any of the property, or of ever using appellant’s plans.

Respondent entered into negotiations with appellant to be relieved of the contingent liability. The parties were unable to reach an agreement as to the value of that liability. Respondent did not pay appellant any part of the contingent liability. Instead, he moved for entry of a satisfaction of judgment. After taking evidence, the trial court made findings of fact and conclusions of law and directed entry of satisfaction of judgment releasing the judgment lien on the property and awarding respondent $250 in damages and $750 in attorney’s fees. The present appeal followed.