Warren v. Sharabi

Filed 4/3/06 Warren v. Sharabi CA4/1

Received for filing 5/2/06

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Janis L. Sammartino, Judge. Affirmed in part, reversed in part.

Robert Warren and Katherine White, as cotrustees of their family trust (the plaintiffs), entered into an agreement to purchase a partially completed home in Del Mar from M. Nazmi Sharabi. After a dispute arose between the parties regarding allowances for fixture and finish upgrades for the home, Sharabi refused to sign the escrow instructions and the plaintiffs filed this action against him for breach of contract, specific performance and declaratory relief. After posting a surety bond, Sharabi appealed a judgment granting specific performance and declaratory relief in the plaintiffs' favor; the plaintiffs cross-appealed the trial court's denial of their request for attorney fees. In an unpublished opinion, we affirmed the judgment and the court's denial of attorney fees to the plaintiffs, but remanded with directions to the trial court to make findings about specific amounts the plaintiffs owed Sharabi for certain upgrades, as necessary to calculate the entire amount the plaintiffs were required to pay for the property.

Upon remand, the trial court made findings on the disputed fixture and finish items and set the specific amount to be paid by the plaintiffs for the property. It thereafter denied Sharabi's request for equitable adjustments to that amount for carrying costs incurred in maintaining the property during the pendency of this action. It also granted the plaintiffs' requests for an award of postjudgment attorney fees and costs and to assess the surety bond for waste that occurred at the property since the outset of the litigation.

Sharabi now appeals the court's orders relating to the denial of equitable adjustments, the attorney fees award and the assessment of the bond, contending that (1) the trial court was required under the analysis of Stratton v. Tejani (1982) 139 Cal.App.3d 204 (Stratton) and similar authorities to account for the interest expense incurred between the time that escrow would have closed if it had done so in a timely fashion and the time that it actually closed; (2) the court erred in awarding the plaintiffs attorney fees in light of its earlier finding that they were not entitled to recover such fees under the terms of the residential purchase contract; and (3) the court erred in assessing the bond for waste at the property because the bond did not cover waste and in any event the substantial appreciation in the value of the property precluded the possibility of waste. We conclude that the court erred in awarding the plaintiffs their postjudgment attorney fees and reverse its November 2004 order insofar as it made such an award. In all other respects, we affirm the court's orders.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Sharabi started to develop a Del Mar property he owned by building a home on it; in January 1998, when the house only partially completed, he listed the property for sale; the listing described various details about what the finished house would include. Shortly thereafter, the parties entered into a residential purchase agreement pursuant to which the plaintiffs agreed to buy the property from Sharabi for $969,000. While construction of the house was continuing, the plaintiffs requested various changes or upgrades to the planned fixtures and finishes, indicating that they were willing to pay the difference in price for those changes or upgrades.

In mid- and late-February, Sharabi told the plaintiffs that they would have to pay additional amounts for the stucco work on the house, which was costing more than he had originally anticipated, and for various upgrades. After the plaintiffs refused to pay additional amounts for the stucco work, Sharabi told them that he believed that the purchase agreement was unenforceable because the parties had not agreed on the finish specifications and allowances. Over the course of several months, the parties continued to disagree about which finishes were included in the agreed-upon purchase price and the plaintiffs ultimately faxed Sharabi a letter demanding that he either take steps to close the transaction or submit to mediation of the dispute, as required under the contract, within seven days. The letter stated: "If you do not agree in writing with our . . . statements [regarding the cost differentials between the planned items and the upgraded or changed items] or provide evidence of submitting this matter to mediation by the close of business on [July 30], we will assume that you have waived mediation and will consider an appropriate response." Sharabi responded that he was canceling the agreement, although he also indicated that "mediation may be worth pursuing."

The plaintiffs filed this action for specific performance and declaratory relief against Sharabi and recorded a lis pendens against the property. After a bench trial, the court issued an amended statement of decision finding that the residential purchase agreement satisfied the statute of frauds and set forth all the material terms of the parties' agreement. It found that the conduct of the parties was sufficient to establish the originally intended finishes that were included in the purchase price and the upgrades to those finishes that were made at the plaintiffs' request. It found that the plaintiffs had agreed to pay Sharabi for the cost of various upgrades and that Sharabi's attempted cancellation of the agreement was "legally inadequate."

Based on these findings, the court granted the plaintiffs' request for specific performance and declaratory relief; in December 1999, it entered a conditional judgment requiring Sharabi to sign the escrow instructions for a 60-day escrow, to provide the plaintiffs with a final building permit and certificate of occupancy within 30 days and to deliver a grant deed to the property to the plaintiffs prior to the date set for the close of escrow. The court also ordered the plaintiffs to deposit into escrow the balance of the purchase price plus the net cost of the specified upgrades less the originally planned finishes that were eliminated at the plaintiffs' request; however, its order did not specify the amount to be deposited or the costs attributable to the upgrades. The court reserved jurisdiction as to additional costs incurred in closing the escrow on the property and thereafter denied a motion by the plaintiffs to recover their attorney fees, finding that the plaintiffs did not make reasonable attempts to resolve their dispute through mediation as required by the contractual attorney fees provision of the residential purchase agreement and thus they were not entitled to an award of fees pursuant to the contract.

Sharabi filed a notice of appeal from the judgment and moved the trial court to stay enforcement of the judgment pending appeal conditioned on his obtaining a bond "sufficient to secure [his] promise that he will not commit waste to the property and to secure the value of the 'use and occupancy of the property' while this appeal is pending." Sharabi argued that because his intent was to sell the property, he would not permit waste at the property and asked the court to either waive the bond or require a nominal one; the court set the amount of the bond at $83,000.

On his appeal, Sharabi argued that the agreement between the parties was unenforceable, the evidence was insufficient to establish that the parties reached an agreement, the judgment was fatally uncertain and the judgment erroneously stated the price the parties had originally agreed upon. The plaintiffs filed a cross-appeal, challenging in part the court's denial of their request for attorney fees. In an unpublished opinion, we affirmed judgment granting specific performance and declaratory relief, upholding the trial court's findings regarding the existence of an enforceable agreement, but noting that although the court's statement of decision listed the upgraded finish and fixture items for which the plaintiffs were required to pay additional amounts, it did not specify the amounts to be paid as required by the law. We remanded the matter with directions to the trial court to determine those amounts and make a specific finding as to the total price the plaintiffs had to pay to Sharabi in exchange for the property. (Warren v. Sharabi (Mar. 6, 2002, D035696) nonpub. opn.)

Sharabi unsuccessfully petitioned for review of our decision by the California Supreme Court and the matter was remanded to the superior court in July 2002. After a series of ex parte requests by the parties, the court set for hearing an application by the plaintiffs seeking to have the court fix the net difference in costs between the upgrades and eliminated items identified in the court's statement of decision at $5,350, based on the evidence they presented at trial (despite the fact that the trial court had previously indicated that it did not find this evidence credible and thus declined to set specific amounts in the original judgment). Sharabi argued that the net difference the plaintiffs owed him for upgrades was $172, 976.01, which was calculated by taking the $183,280.81 in upgrades he added to the property after the parties' agreement and subtracting out the $44,900 in upgrades he originally agreed to provide the plaintiffs. He provided no evidence to substantiate the cost differentials for the finish and upgrade items specified in the court's statement of decision.

Based on a consideration of the evidence submitted by the parties, the court determined that the additional amount the plaintiffs had to pay for upgrades to the fixtures and finishes was $20,757. In setting this number, the court accepted Sharabi's evidence that the total costs of all upgrades (excluding overhead costs) was $183,280, subtracted from that amount the $44,900 in finishes that Sharabi had agreed to provide to the plaintiffs and allocated 15 percent of the remaining amount to plaintiffs' specified upgrades and 85 percent to the finishes that Sharabi was obligated to perform pursuant to the original agreement between the parties.

At the same hearing, the court heard an application by Sharabi for an order releasing the $83,000 surety bond he had posted to stay execution of the judgment pending his prior appeal. In his application, Sharabi essentially argued that the equities supported a release of the bond in light of the fact that he alone had born the costs of completing construction and the servicing costs for the property (such as mortgage, insurance and property tax payments) during the time the litigation was pending. The court denied this request, holding that the bond would have to remain in place until after the close of escrow and transfer of the property to the plaintiffs.

Sharabi noticed an appeal from the court's order setting the net difference amount and filed briefs arguing in part that, in accordance with Stratton, supra, 139 Cal.App.3d 204, the court erred in failing to conduct an equitable accounting and to award him his costs for carrying the property during the five years that the litigation had been on-going. In March 2004, after the appeal was fully briefed and oral argument was scheduled, Sharabi notified this court that he had filed for bankruptcy. Although Sharabi requested that the bankruptcy court reject the residential purchase agreement as an executory contract, the bankruptcy court declined to do so and in fact granted the plaintiffs relief from the bankruptcy stay, thus permitting this action to proceed. Thereafter, the parties stipulated to a dismissal of Sharabi's second appeal and the matter was remanded to the trial court in September 2004.

Upon remand, Sharabi filed a motion asking the court to issue an order "Balancing the Equities Between the Parties and Approving Escrow Procedures for Final Closing", again based on Stratton, supra, 139 Cal.App.3d 204 and similar cases. He contended that he was entitled to receive not only the amount of the purchase price, but also 10 percent interest on the purchase price from the originally planned escrow closing date to the projected escrow closing date of December 13, 2004, less the rental income he received during that time after reduction for carrying costs, including property taxes, maintenance and leasing commissions. According to Sharabi's calculations, the additional amount to be paid by the plaintiffs was $584,298. The plaintiffs opposed Sharabi's request for equitable adjustments, contending that the court lacked jurisdiction to make them on remand and that in any event, Sharabi was not entitled to equitable adjustments since the failure of escrow to close in a timely fashion was solely attributable to him. At a November 2004 hearing, the court denied Sharabi's request for equitable adjustments, finding that the authorities cited by him did not support the conclusion that it could make such an award after the entry of judgment.

At the same hearing, the court considered a motion by the plaintiffs to recover $34,090.80 in postjudgment attorney fees pursuant to the attorney fees provision of the residential purchase agreement. The court rejected Sharabi's argument that its prior ruling and the law of the case doctrine precluded an award of fees to the plaintiffs and it awarded the plaintiffs the requested fees in their entirety.

After escrow closed on the sale of the property, the plaintiffs made a motion to assess Sharabi's surety bond. They contended that, as a result of Sharabi's rental of the property during the pendency of this action, various repairs, costing much more than the amount of the bond, were necessary to bring the property to as-new condition. Sharabi opposed the motion, arguing that (1) the bond was not applicable to the items for which the plaintiffs sought recovery, (2) because the property had appreciated in value, the plaintiffs could not establish the property suffered "waste," and (3) the costs of the legitimately required repairs were considerably lower than the amounts the plaintiffs claimed. In February 2005, the court found that the plaintiffs had established waste in an amount in excess of $83,000 and issued an order allowing them to recover against the surety bond.

Sharabi appeals from the court's orders denying his request for equitable adjustments, granting the plaintiffs' request for attorney fees and allowing the plaintiffs to access the bond.

DISCUSSION

1. The Denial of Equitable Adjustments

In a case where a court orders specific performance of an agreement to purchase real property, established equitable principles generally require that "the parties be placed in the same positions they would have been in had the contract been timely performed." (Stratton, supra, 139 Cal.App.3d at p. 208; Ellis v. Mihelis (1963) 60 Cal.2d 206, 219-220 (Ellis).) As the California Supreme Court has made clear, in ordering specific performance of such a contract, the trial court's decree "should as nearly as possible require performance in accordance with [the contract's] terms. One of the terms is the date fixed by it for completion, and since that date is past, the court, in order to relate the performance back to it, gives the complainant credit for any losses occasioned by the delay and permits the defendant to offset such amounts as may be appropriate. The result is more like an accounting between the parties than like an assessment of damages." (Ellis, supra, 60 Cal.2d at pp. 219-220; accord, Bravo v. Buelow (1985) 168 Cal.App.3d 208, 213 (Bravo).)

In accordance with the foregoing authorities, a trial court awarding specific performance may consider, and account for between the parties, a variety of items of expense, including the increased cost of financing caused by the seller's failure to perform (Stratton, supra, 139 Cal.App.3d at pp. 208, 214; Hutton v. Gliksberg (1982) 128 Cal.App.3d 240, 249), the increased cost of construction occasioned by the seller's delay in conveying title (Bravo, supra, 168 Cal.App.3d at pp. 209, 215-216), and taxes paid by the seller during the period of delayed performance (D-K Investment Corp. v. Sutter (1971) 19 Cal.App.3d 537, 550). Such considerations are based on the recognition that "'[s]pecific performance is an action in equity . . . [and that] [e]quity is not bound by rigid precedent, but has the flexibility to adjust the remedy in order to do right and justice.'" (Bravo, supra, 168 Cal.App.3d at p. 214, quoting Hutton v. Gliksberg, supra, 128 Cal.App.3d at p. 249.)

If Sharabi had requested such an equitable accounting in the original trial proceedings, the trial court would have been obligated to consider the parties' respective evidence relating to such an accounting. Unfortunately, however, Sharabi did not raise this matter in those proceedings or even on the first appeal. Having failed to seek an accounting at trial, Sharabi arguably waived the right to seek such relief at a later point in the case. (See Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 368, fn. 1; Durkee v. Chino Land & Water Co. (1907) 151 Cal. 561, 571.)

Sharabi nonetheless argues that because we remanded the matter with directions to the trial court to make a specific finding as to the amount the plaintiffs had to pay him for the property, we left open the possibility for the trial court to conduct an equitable accounting on remand. Assuming, without deciding, that our opinion can be read to indicate that the trial court was to determine anything other than the additional amount the plaintiffs had to pay for the disputed fixture and finish items (contra Warren v. Sharabi, supra, D035696, pp. 17-18), Sharabi's argument is unavailing for a more fundamental reason. In his briefs filed on his second appeal in this case, Sharabi argued in part that the trial court erred in failing to award him his carrying costs for the property or to conduct an equitable accounting in accordance with Stratton, arguments that he later abandoned when he stipulated to the dismissal of that appeal. Having voluntarily dismissed his second appeal, Sharabi essentially acquiesced in any error relating to his entitlement to an equitable accounting and, on that basis, the trial court correctly declined to provide him such relief on remand after the dismissal of the second appeal.

Even if it had been appropriate for the trial court to consider Sharabi's request for equitable adjustments after the second remand of the case, the trial court's own comments suggest that it did not believe the equities worked in his favor at that point in time. The court aptly pointed out that, although both sides were guilty of unreasonable behavior in this case, if Sharabi had "truly been desirous of a transfer and closure on this escrow, this could have happened a long time ago[.]" In fact, the record establishes that most, if not all, of the delays in closing the escrow after the first remand of this case in July 2002 were attributable to Sharabi. Under the circumstances, Sharabi cannot now be heard on appeal to contend that the trial court failed to do equity here.

2. The Grant of Postjudgment Attorney Fees to the Plaintiffs

Although a party who prevails in a civil action is entitled to recover its costs as a matter of right unless otherwise provided by statute (Code Civ. Proc., § 1032, subd. (b), all statutory references are to this Code unless otherwise specified; see Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 104), California law generally requires that a party to a lawsuit pay its own attorney fees, regardless of whether it prevailed in the action. (§ 1021; Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) An exception to this general rule is recognized where a contract, statute or other law specifically authorizes the prevailing party to recover attorney fees. (§ 1033.5, subd. (a)(10); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) Where a contract authorizes the recovery of attorney fees in an action on the contract, the court must determine whether the prevailing party is entitled to fees in accordance with the contract terms; if so, the trial court has broad discretion to determine the amount of fees to be awarded. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Although we will not disturb the court's determination as to the amount of fees to be awarded unless it is "clearly wrong," we review de novo the legal basis underlying the award of attorney fees. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1511.)

Here, the residential purchase agreement between the parties authorized the recovery of attorney fees, subject to the proviso that "[i]f any party commences an action based on a dispute or claim [arising out of the agreement] without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party in any such action." After granting specific performance and declaratory relief to the plaintiffs, the court denied their motion for attorney fees, finding in part that the plaintiffs' letter demanding that Sharabi comply with the contract or provide them evidence that he had submitted the matter to mediation within seven days was not a genuine attempt to mediate the dispute, but was instead used as a threat. On the parties' first appeal, we upheld the trial court's ruling that the plaintiffs were not entitled to recover their attorney fees pursuant to the terms of the purchase agreement. (Warren v. Sharabi, supra, D035696) pp. 19-21.)

Notwithstanding the court's legal determination that the plaintiffs had not complied with the contractual requirements to be entitled to an award of attorney fees, the plaintiffs later requested an award of postjudgment attorney fees. The court, understandably frustrated with the lack of progress in resolving this case over so many years, apparently granted the motion on the ground that the equities favored an award to the plaintiffs. Sharabi contends that the court erred in awarding the plaintiffs their postjudgment fees. We agree.

Principles of law necessarily involved in and decided by an appellate court are binding upon the lower court in future proceedings in the same case. (United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712.) Upon a subsequent appeal in the same case, an appellate court generally will not inquire into the correctness of the principles of law laid down in its earlier appellate decision, but will regard those principles as law of the case and thus only consider the record to determine if those principles were followed. (Ibid.; see also In re Saldana (1997) 57 Cal.App.4th 620, 625-626.) Here, they were not.

Having determined that the plaintiffs had failed to comply with the contractual prerequisites for an award of attorney fees, the trial court could not thereafter conclude that the plaintiffs were entitled to recover such fees pursuant to the attorney fees provision of the residential purchase agreement. (See Frei v. Davey, supra, 124 Cal.App.4th at p. 1520 [holding that the mediation provision "means what it says -- a party refusing a request to mediate a dispute that ripens into litigation may not recover attorney fees at the conclusion of the litigation, even if that party is the prevailing party"].) Notably, the plaintiffs offer no explanation or citation to relevant authority to support their contention that it was proper for the trial court to do so, on equitable grounds or otherwise. More importantly, once the trial court's original determination that the plaintiffs were not entitled to recover their attorney fees pursuant to the residential purchase agreement was affirmed on appeal, that determination became law of the case and thus binding on all subsequent proceedings.

Perhaps recognizing the weakness of their primary argument, the plaintiffs alternatively contend that, even if the law of the case doctrine generally precludes an award of fees in their favor, they are nonetheless entitled to recover fees incurred by them in connection with Sharabi's bankruptcy because there is an exception in the residential purchase agreement for fees incurred in such proceedings. This argument is disingenuous at best; the contractual provision on which the plaintiffs rely does not create an exception allowing the recovery of fees by a party who has not complied with the contractual conditions for an award of attorney fees, but merely indicates that a party is not required to mediate or arbitrate before filing a proceeding in the bankruptcy court.

In the absence of a contractual or statutory basis for an award of fees in the plaintiffs' favor, California law requires that the plaintiffs pay their own attorney fees, notwithstanding that they prevailed on their claims for specific performance and declaratory relief at trial. (§ 1021; Trope v. Katz, supra, 11 Cal.4th at p. 279.) Accordingly, we reverse the court's November 2004 order insofar as it awarded the plaintiffs their post-judgment attorney fees.

3. The Assessment of the Bond

Prior to Sharabi's first appeal in this case, he applied to the trial court to set the amount of the bond necessary to stay execution of the judgment pending appeal, as required pursuant to section 917.4. The trial court required Sharabi to post a surety bond in the amount of $83,000; its order specified that $72,000 was "for use of [the] property" and the remainder was for delinquent property taxes. Sharabi obtained a bond.

After the transaction closed escrow, the court granted the plaintiffs' motion to call in the bond, finding that the plaintiffs' evidence was sufficient to establish waste at the property in excess of the amount of the bond. Sharabi contends that the trial court erred in making this order because (A) its order setting the amount of the bond specifically indicated that the bond was intended to protect against use of the property and delinquent property taxes and the bond itself was issued under a statute other than section 917.4; and (B) even assuming that the bond protected against waste, there was no such waste as a matter of law in light of the uncontroverted evidence that the property has appreciated substantially since 1998. We address these arguments in turn below.

A. The Scope of the Bond

The conditions of a bond required to stay execution of the judgment pending appeal are set forth in section 917.4, which provides in relevant part:

"[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given that the appellant or party ordered to sell, convey or deliver possession of the property will not commit or suffer to be committed any waste thereon and that if the judgment or order appealed from is affirmed, or the appeal is withdrawn or dismissed, the appellant shall pay the damage suffered by the waste and the value of the use and occupancy of the property, or the part of it as to which the judgment or order is affirmed, from the time of the taking of the appeal until the delivery of the possession of the property."

Section 917.4 provides an exception to the general rule that the filing of an appeal does not stay enforcement of the judgment, conditioned on the provision of a bond that will provide monetary protection to a prevailing respondent in exchange for the respondent's inability to immediately enforce the judgment. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) § 7:96, p. 7-28.3.) Section 917.4 essentially ensures the status quo of the real property, so that the appealing party bears the risk of any damage to the real property during the pendency of the appeal and the prevailing party will not receive property of lesser value after an appeal than it would have received at the time of judgment.

In accordance with the express statutory language, Sharabi was required to obtain a bond that would provide protection to the plaintiffs for any damages to the property resulting from waste, a matter that he admitted in his motion to have the trial court set the amount of the bond. He argues, however, that because the trial court's order expressly referred to property use and delinquent taxes, but not waste, he was not required to obtain a bond that protected against waste. Given that Sharabi's application in the trial court specifically requested that the court set the amount of the bond required by section 917.4, we are unpersuaded that the language of the court's order excused him from obtaining a bond against waste as required by that statute.

B. Effect of Appreciation of the Property on the Issue of Waste

Sharabi's final contention is that the trial court erred in allowing the plaintiffs to recover under the bond for damages from waste to the property because the property had appreciated substantially in value. He cites cases governing a life tenant's obligations to a remainderman to maintain the tenant property and recognizing that although a life tenant has the right to full use and enjoyment of the life estate, he or she must not permanently diminish the value of the remainder estate. (See Eastman v. Peterson (1968) 268 Cal.App.2d 169, 173-174; Hardie v. Chew Fish Yuen (1968) 258 Cal.App.2d 301, 304; Sallee v. Daneri (1942) 49 Cal.App.2d 324, 327; see generally Civ. Code, § 818.) The trial court found these authorities inapposite and, in light of the purpose behind section 917.4's requirement that a bond be posted, so do we.

As a condition of staying execution of a judgment for specific performance of a contract for the sale or conveyance of "real property," section 917.4 requires that the appellant in possession of the property provide an undertaking that he or she "will not commit or suffer to be committed any waste thereon[.]" "Real property" includes not only land, but also structures affixed to the land, in this case, the house. (E.g., Civ. Code, § 658.) Unlike the life tenant, who has rights to full use and enjoyment of the property during the life tenancy so long as he or she does not cause "injury to the inheritance" (i.e., a depreciation in the market value of the property), the appellant is required to post the bond so that if and when the property is ultimately transferred to the respondent, the respondent will receive the property in the same condition as it was in at the time of the judgment in his or her favor. Thus, while a life tenant does not have to "use what might appear to be the best of care in the cultivation and care of the property" subject to the life tenancy (Sallee v. Daneri, supra, 49 Cal.App.2d at p. 327), an appellant who posts a bond pursuant to section 917.4 must take appropriate care of the property or face the possibility that the respondent will proceed against the bond to bring the property to the condition it was in at the time of the judgment. Absent any citation to more clear authority in Sharabi's favor, we conclude that the plaintiffs were entitled to proceed against his surety bond, notwithstanding that the property as a whole has appreciated in value.

DISPOSITION

The court's November 2004 order is reversed insofar as it granted the plaintiffs their postjudgment attorney fees and is otherwise affirmed in its entirety. The court's February 2005 order allowing the plaintiffs to proceed against the bond is also affirmed. The parties are to bear their own costs on appeal.

McINTYRE, J.

WE CONCUR:

NARES, Acting P.J.

O'ROURKE, J.

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