Philips v. Smurro CA4/3

Filed 9/2/15 Philips v. Smurro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

WAYNE PHILIPS,

Plaintiff and Respondent, G049791

v. (Super. Ct. No. 30-2012-00558438)

THOMAS E. SMURRO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed. Thomas E. Smurro, in pro. per., for Defendant and Appellant. Wayne Philips, in pro. per., for Plaintiff and Respondent.

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This case concerns a dispute over attorney fees. Plaintiff Wayne Philips sued defendant Thomas E. Smurro to recover his fee for representing defendant in a prior lawsuit. The trial court awarded plaintiff over $58,000 in damages, prejudgment interest, and costs. Defendant contends the award is excessive because it included fees interpleaded by the opposing party in the prior action, plus prejudgment interest on those funds. We conclude his arguments lack merit and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Defendant, an attorney, retained plaintiff to represent him in a lawsuit against Cantamar Community Association (Cantamar), defendant’s homeowners association. The retainer agreement provided plaintiff would be entitled to “ninety-five percent (95%)” of any court-ordered attorney fee award, plus costs, and granted plaintiff “a lien on . . . all claims.” Defendant prevailed at trial in the Cantamar action and the court awarded him a gross attorney fee award of $49,000. However, the court reduced the amount Cantamar owed to defendant by $12,800, citing Cantamar’s success in striking defendant’s cross-complaint. Cantamar was directed to deposit the balance, i.e., $36,200, with the court and it eventually did so. Plaintiff requested defendant pay him 95 percent of the $49,000 gross attorney fee award, plus unreimbursed costs. Defendant failed to do so. After defendant also failed to respond to a proposal for arbitration of the fee dispute, plaintiff filed this action. While the case was pending, plaintiff sought release of the $36,200 deposited by Cantamar. Defendant opposed the motion and the court denied plaintiff’s request. After a four-day trial, the court ruled in plaintiff’s favor. It also authorized the release of Cantamar’s $36,200 deposit to plaintiff. Defendant then agreed to stipulate to the release of these funds and also sent plaintiff a check for $11,072.88 with a letter