Mustachio v. Great Western Bank

California Court of Appeal Aug 21, 1996 No. B098467Published

Before: Lillie

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Holding. The court affirmed the trial court's order designating the plaintiff as the prevailing party and awarding her $65,000 in attorney's fees, holding that the appellate court's prior order for parties to bear their own costs did not preclude a subsequent award of contractual attorney's fees.

Issues

Whether an appellate order for parties to bear their own costs precludes a trial court from awarding contractual attorney's fees incurred on appeal.
Whether the trial court abused its discretion in determining the plaintiff was the prevailing party under Civil Code section 1717.
Whether the underlying action for conversion and breach of contract constituted an action on a contract for purposes of recovering attorney's fees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The provisions allowing costs on appeal (Code Civ. Proc., § 1034 and Cal. Rules of Court, rule 26), however, are entirely separate from the contractual provision for fees and do not depend on the party winning the appeal”

“Civil Code section 1717 defines the phrase “party prevailing on the contract” as the party who recovered a greater relief in the action on the contract.”

“Absent a manifest abuse of discretion, the determination of the trial court will not be disturbed.”

[1148]

Opinion

LILLIE, P. J.

Great Western Bank appeals from an order after judgment finding Marie Mustachio to be the prevailing party and awarding her $65,000 as reasonable attorney’s fees.

Statement of Facts and Procedural History

As a result of unauthorized access to Marie Mustachio’s safe deposit box granted by Great Western Bank, she filed an action in superior court. Following a jury trial and by special verdicts, the jury found Great Western liable to her for conversion, breach of contract, negligence and negligent infliction of emotional distress. On August 23, 1993, Marie Mustachio was awarded damages of $348,770, which sum included damages of $180,270 as a result of the conversion, general and special damages for emotional distress in the amount of $18,500 and punitive damages in the amount of $150,000. The court, sitting without a jury, found that by way of Great Western’s cross-complaint against cross-defendant Angelo Mustachio for express indemnity, Great Western was entitled to judgment against Angelo Mustachio in the sum of $198,770 plus costs and interest from the date of entry of judgment. Marie Mustachio was awarded costs in the sum of $81,490.69, including attorney’s fees.

The judgment was subsequently modified to award Marie Mustachio prejudgment interest from the date of conversion on $30,000 cash but not on the value of jewelry and deutschmarks converted. Additionally, the court granted Great Western’s motion for new trial on the amount of punitive damages, finding that the award was excessive and disproportionate to the bank’s misconduct.

Following appeals to this court by all parties, we issued an opinion on March 27,. 1995, in

Mustachio

Great Western Bank

(B081162) (nonpub. opn.) wherein we held that based on insufficiency of the evidence, that portion of the judgment imposing liability for punitive damages on Great Western had to be stricken and that Marie Mustachio was entitled to an award of prejudgment interest on the market value of all of the converted property. While Marie Mustachio also sought to set aside the judgment of indemnity on the cross-complaint filed by Great Western against Angelo Mustachio, that claim was rejected as she was not a party to the indemnity action and Angelo Mustachio’s cross-appeal had been dismissed pursuant to California Rules of Court, rule 10(c), for failure to file a notice designating the record on appeal. In our disposition we modified the judgment, striking the finding that Great Western was liable to Marie Mustachio for punitive

Mustachio v. Great Western Bank

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LILLIE, P. J.

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