Prior Written Settlement Agreement Showed Intent to Reserve Fee Motion, But Dismissal Conduct “Trumped” Under Waiver Principles.
This next one is, as the trial court observed, “one of those unfortunate life lessons” for a party reserving the option to move to recoup fees under a settlement agreement. What happened is that despite settlement agreement provisions reserving the ability to seek fees later, the settling plaintiff checked the “other” box in the Judicial Council Request for Dismissal form and added: “Each party to bear their own attorney fees and costs.”
The lower court found this to be an express waiver of the right to seek fees, and the appellate court agreed in a 3-0 decision authored by Presiding Justice O’Leary in Herrera v. A&P Auto Sales, Case No. G048290 (4th Dist., Div. 3 Feb. 24, 2014) (unpublished).
Ouch! Be careful what you check, especially given that plaintiff’s counsel was seeking $159,469.00 in fees (inclusive of a 2.0 multiplier) and $12,847.20 in costs.