Whispering Ridge Homeowners Assn. v. Chaudry

Filed 2/24/06 Whispering Ridge Homeowners Assn. v. Chaudry CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, J. Richard Haden, Judge. Affirmed.

Defendant A. Waheed Chaudry appeals an order, issued on remittitur from an earlier appeal, striking the memorandum of costs of plaintiff Whispering Ridge Homeowners Association (the Association) and refusing to consider the merits of Chaudry's opposition to the memorandum's request for attorney fees incurred on the earlier appeal. As this court awarded the Association a specific amount of attorney fees for the earlier appeal, as noted in the remittitur, the superior court was bound by the award and lacked jurisdiction to consider Chaudry's challenges to it. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

This is the latest in a series of appeals Chaudry has brought in a case arising from his refusal to landscape his yard in accordance with the Association's covenants, conditions and restrictions and related rules. In 2000 the Association prevailed against Chaudry on its complaint for nuisance and declaratory relief. Chaudry appealed, and in Whispering Ridge Homeowners Association v. Chaudry (Sept. 25, 2001, D034624 [nonpub. opn.], hereafter Whispering Ridge I), we reversed the judgment as to the nuisance cause of action but affirmed it in other respects. We also held the Association was the prevailing party entitled to attorney fees on appeal, and we remanded the matter to the trial court for its determination of the amount of fees.

Chaudry separately appealed the trial court's award of $23,321.26 in attorney fees and other costs incurred at the trial court. In Whispering Ridge Homeowners Association v. Chaudry (July 8, 2003, D036167 [nonpub. opn.], hereafter Whispering Ridge II), we held the Association was the prevailing party entitled to an award of attorney fees, and the amount of the fees awarded was reasonable. We also awarded the Association $9,884 in attorney fees on appeal.

In February 2002, following the issuance of the remittitur in Whispering Ridge I, the trial court awarded the Association $17,693.90 in attorney fees and costs on appeal. In March 2002 the Association made an ex parte application for an order to show cause regarding Chaudry's contempt of the underlying judgment because he had not complied with the landscaping requirements. The court found Chaudry in contempt and ordered him to pay a fine of $1,000 and serve five days in jail. The court also awarded the Association $5,245.20 in attorney fees and costs.

Chaudry appealed those judgments and in Whispering Ridge Homeowners Association v. Chaudry (May 28, 2004, D041077 [nonpub. opn.], hereafter Whispering Ridge III), we affirmed them. In an effort to circumvent another round of litigation and another appeal, we invited the Association to file a motion for attorney fees on appeal. The Association did so and appended documentation supporting its claim for $12,586.97 in attorney fees and $126.88 in costs. Chaudry filed a written opposition, arguing among other things that the fee request was excessive. We awarded the Association the requested amount of $12,713.85 on appeal. The California Supreme Court denied Chaudry's petition for review.

On August 16, 2004, this court issued the remittitur in Whispering Ridge III, specifying the Association is entitled to $12,713.85 in attorney fees and costs on appeal. On August 23, however, the Association mistakenly filed in the superior court a memorandum of costs on appeal, seeking $12,783.86 in attorney fees. Chaudry moved to strike the memorandum or to tax costs, challenging the propriety of a fee award. He argued the "memorandum of costs falsely certifies under oath that all of the costs claimed consist of attorney's fees," "the memorandum fails to specify, in detail, the bases of the claimed costs," he "has been deprived [by this court] of due process and fair hearing in the right to cross examine witnesses respecting the claimed costs," and the Association "has not exhausted all appellate remedies related to the claimed costs."

On October 29, 2004, the trial court issued a tentative ruling striking the Association's memorandum of costs, noting it "is admittedly surplusage." The court determined this court's remittitur order on the amount of attorney fees and costs on appeal is law of the case, and declined to consider Chaudry's substantive arguments. After a hearing, the court affirmed the tentative ruling.

DISCUSSION

Chaudry contends the trial court erred by finding the Association's memorandum of costs was surplusage because our remittitur order delineating its attorney fees award on appeal in Whispering Ridge III is law of the case. Although Chaudry moved to strike the memorandum of costs, he complains that the court's granting of his motion precludes him from relitigating the fee issue at the trial court. In arguing the Association may not recover attorney fees on appeal without filing a memorandum of costs in the trial court, he cites California Rules of Court, rule 27(d)(1), which provides that "[w]ithin 40 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 870."

" '[I]t is established that fees, if recoverable at all--pursuant to either statute or [the] parties' agreement--are available for services at trial and on appeal.' " (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) The appellate court has the power to fix the amount of attorney fees on appeal, and on occasion it does so, but it generally relegates the task to the trial court. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498; People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1985) 165 Cal.App.3d 378, 387-388; Roberts v. Brian (1973) 30 Cal.App.3d 427, 431.) Here, because of Chaudry's litigiousness, we fixed the amount of fees in a fruitless attempt to bring the matter to a conclusion.

In Benson v. Greitzer (1990) 220 Cal.App.3d 11, 14, on which the trial court relied here, the court held that when the appellate court awards attorney fees on appeal, "the trial court is bound to follow the appellate court's expressions on the subject, under principles of law of the case." Chaudry asserts the law of the case doctrine is inapplicable because the amount of attorney fees is a factual matter, not a rule of law. "The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.) "Except where the sufficiency of the evidence as a matter of law is involved . . . , the doctrine does not give any conclusive effect to determinations of questions of fact." (Id. at § 901, p. 936.)

Even if the law of the case doctrine is inapplicable, however, the trial court is bound by our attorney fee award in Whispering Ridge III. "The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. 'The order of the appellate court as stated in the remittitur, "is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if it should do so, the judgment rendered thereon would be void." ' " (Griset v. Fair Political Practices Comm. (2001) 25 Cal.4th 688, 701.)

As the trial court knew, it lacked jurisdiction to retry the attorney fees issue. Chaudry's recourse was a petition for rehearing to this court or a petition for review to the California Supreme Court. He did petition for review, and the court denied the petition, thus finalizing the matter. The court properly struck the Association's memorandum of costs and declined to address Chaudry's arguments in opposition to this court's award of attorney fees on appeal.^[2]

DISPOSITION

The order is affirmed. The Association is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Publication courtesy of Coronado Neighbor Law Attorney (http://www.mcmillanlaw.us/) And Coronado Lawyers Directory

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^[1] We deny Chaudry's August 31, 2005, request for judicial notice.

^[2] Chaudry asserts the court erred by relying on Code of Civil Procedure sections 435 and 436 in striking the Association's memorandum of costs, because they concern the striking of a "pleading" and do not list such a memorandum as a "pleading." Given our discussion, the issue is immaterial.