Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. 02CC12219, Corey S. Cramin, Judge. Affirmed. Motion to strike denied.
William J. Davis, in pro. per., for Intervener and Appellant.
Thomas A. Bolan; Davis & Company, William J. Davis and Kathryn J. Woods for Interveners and Appellants Davis & Company and William J. Davis.
Peter L. Weinberger & Associates and A. Douglas Mastroianni for Plaintiff and Respondent.
OPINION
MOORE, J.
William J. Davis (Davis) and Davis & Company (the Company) filed two motions for attorney fees, claiming they were entitled to fees as prevailing parties under certain contracts, and based on the rationale of Flannery v. Prentice (2001) 26 Cal.4th 572. The court denied their motions. Davis and the Company appeal, contending that the court erred on several grounds. We affirm.
In order for a litigant to recover attorney fees as a prevailing party on a contract, the contract must provide that the prevailing party is entitled to attorney fees. (Santisas v. Goodin (1998) 17 Cal.4th 599, 607, fn. 4; Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) Here, the applicable contracts did not contain any such provisions. Furthermore, the trial court did not err in declining to apply Flannery v. Prentice, supra, 26 Cal.4th 572 as a separate basis for an attorney fees award. Although Davis and the Company raise additional arguments, we need not address them.
We deny Davis and the Company’s motion to strike portions of the respondent’s brief of Saben, Earlix & Associates (Saben). In addition, we deny Saben’s request for sanctions.
I
FACTS
This is the second time these parties have paid us a visit. The first time resulted in a published opinion, Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024 (Saben I).
The convoluted facts underlying this matter were set forth in Saben I, supra, 134 Cal.App.4th 1024 as follows: “On July 19, 2002, Saben, Earlix & Associates (Saben) filed a complaint for breach of fiduciary duty and declaratory relief against Robert Fillet (Fillet) (the Saben litigation). The allegations arose out of dealings connected with the Silver Sage Partners, Ltd. (Silver Sage), of which Saben purportedly was a general partner and Fillet purportedly was a former general partner. Saben stated that a $3,040,439 judgment had been entered on behalf of Silver Sage in certain litigation with the City of Desert Hot Springs (the Silver Sage litigation). Saben asserted, among other things, that Fillet’s partnership interest had been extinguished and he had no rights as a general partner. Presumably, Saben intended to imply that Fillet had no right to collect a share of the $3,040,439 judgment.
“The trial court granted William J. Davis (Davis) and Davis & Company (the Company) leave to intervene in the action. In their complaint in intervention, Davis and the Company alleged that Silver Sage had retained them to provide legal services in connection with the Silver Sage litigation. Among other things, Davis and the Company alleged that, through various contracts, they had become entitled to receive 30 percent of Silver Sage’s total income from the judgment in the Silver Sage litigation, in addition to a 20 percent contingency fee and certain other monies. They alleged that the judgment, including accrued attorney fees and interest, could be worth $6.5 to $9 million.
“In their complaint in intervention, Davis and the Company asserted what they characterized as ‘joint claims,’ in which they joined with Fillet in defending against Saben’s claims in the Saben litigation. These joint claims were predicated upon the assertion that Davis and the Company had received a right to collect a substantial portion of the judgment proceeds from the Silver Sage litigation through an assignment from Fillet. They explained their concern that Saben’s attempt to extinguish Fillet’s partnership interest put at risk the share of the judgment that he had assigned to them. Davis and the Company also asserted ‘independent claims’ for promissory estoppel, unjust enrichment, quantum meruit, and declaratory relief.
“In the request for declaratory relief, Davis and the Company stated that the Saben litigation created a controversy as to their right to receive the partnership income that Fillet had assigned to them more than a decade earlier. They sought a court order declaring that they were ‘entitled to receive thirty-percent (30%) of the partnership income, in addition to [their] twenty-percent (20%) contingency fee, for having obtained a judgment in [the Silver Sage litigation], and that [their] rights [were] unaffected by the success or failure of [Saben’s] lawsuit against Robert Fillet.’” (Saben I, supra, 134 Cal.App.4th at pp. 1026-1027.)
“Ultimately, on May 6, 2004, Saben filed a request for dismissal of the complaint, with prejudice and the dismissal was entered on that date. On May 7, 2004, Fillet filed a request for dismissal of his cross-complaint, with prejudice, and the dismissal was entered on that date.” (Saben I, supra, 134 Cal.App.4th at p. 1028.)
“On July 2, 2004, Davis and the Company filed a motion for $225,108.81 in attorney fees, as the prevailing parties in the Saben litigation. At a hearing on August 12, 2004, the court denied the motion as untimely filed, stating the court had no jurisdiction to hear the matter.” (Saben I, supra, 134 Cal.App.4th at p. 1028.)
Davis and the Company thereafter filed a notice of appeal from the order denying the motion for attorney fees. (Saben I, supra, 134 Cal.App.4th p. 1028.) In our opinion on the appeal, we held: “The court erroneously determined that the entry of an order granting summary judgment triggered the running of the time limit for the filing of the attorney fee motion, under California Rules of Court, rule 870.2(b)(1), even though no summary judgment had ever been entered. However, an order granting summary judgment is not an appealable order and the entry of the order did not trigger the attorney fee motion filing deadline under rule 870.2(b)(1).” (Id. at p. 1026.) We reversed the order denying the attorney fee motion and remanded the matter to the trial court for a hearing on that motion. (Ibid.)
On remand, Davis and the Company renewed their motion for $225,108.81 in attorney fees, as the prevailing parties in the Saben litigation (Motion No. 1). In addition, they filed a new motion, seeking $35,779.30 in attorney fees as the prevailing parties in the first appeal (Motion No. 2). The court denied both motions. Davis and the Company appeal.
II
DISCUSSION
A. INTRODUCTION:
In Motion No. 1, Davis and the Company sought attorney fees as prevailing parties, pursuant to Civil Code section 1717. They stated that they were entitled to attorney fees based on attorney fee provisions contained in agreements dated March 25, 2002 and September 12, 2002.
Civil Code section 1717, subdivision (a) provides in pertinent part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
Davis and the Company also said that there was a second reason, an equitable one, why they should receive their attorney fees. They asserted that California and federal courts have recognized that the willingness of lawyers to undertake representation in civil rights cases serves an important function of enforcing civil rights laws and that if a civil rights plaintiff were to take fees away from his or her attorney it would dilute the civil rights fee award and discourage lawyers from taking on civil rights cases. In support of that proposition, Davis and the Company cited only Flannery v. Prentice, supra, 26 Cal.4th 572.
Davis and the Company brought their Motion No. 2 on the same grounds as their Motion No. 1. They asserted that they were entitled to fees as “prevailing parties under their fee contracts,” and noted in a footnote to that statement: “Under Cal. Civ. Code § 1717 or under Cal. Gov. Code § 12965(b) as confirmed by the California Supreme Court in Flannery v. Prentice, 26 Cal.4th 572 (2001) (awarding fees to attorney to prevent ‘dilution’ of fees to civil rights attorney by civil rights plaintiff). Federal law also contains an identical provision, 42 U.S.C. § 3613(c).” (Underscoring omitted.)
Saben opposed the motions on numerous grounds, only two of which we need mention here. For one, Saben asserted that Trope v. Katz, supra, 11 Cal.4th 274 barred the recovery of attorney fees by Davis and the Company inasmuch as they were representing themselves in propria persona. For another, Saben argued that each of the two agreements upon which Davis and the Company relied as a basis for prevailing party fees was inapplicable to their complaint in intervention in the Saben litigation. Saben stated that one of the agreements had to do with fees in connection with certain insurance litigation and one of the agreements had to do with fees in connection with certain bankruptcy litigation. Neither agreement, said Saben, had anything to do with Davis and the Company’s cut of the Silver Sage judgment.
In its minute order denying the attorney fees motions, the court stated: “The motions for both fees as the prevailing parties in the Saben litigation and on appeal are denied. Davis and Company represented itself in the litigation and William J. Davis represented himself and are thus not entitled to recover attorney fees in connection with this action. All cases cited by moving parties as an exception to the application of [principles] set forth in Trope v. Katz [(1995) 11 Cal.4th 274] are distinguishable.” (Italics added.)
Davis and the Company wage several arguments on appeal. At the heart of the matter, however, they argue that the trial court erred in applying California case law, i.e., Trope v. Katz, supra, 11 Cal.4th 274, to cut off a federal entitlement to attorney fees. In doing so, they attempt to reframe the arguments on appeal. We address only the arguments presented to the trial court. (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1303, fn. 15.) And, we affirm the decision of the trial court if it is correct on any ground. (Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 864.) As we shall show, the trial court did not err in denying the motions for attorney fees.
B. UNDERLYING CONTRACTS:
In their Motion No. 1, Davis and the Company asserted that the City of Desert Hot Springs had “killed Silver Sage’s financing for 117 units of housing for families of low and very low income” and that Silver Sage did not have the resources to pursue litigation against the city. Accordingly, alternative funding was sought to keep the project alive. This resulted in five pertinent agreements.
The first was an agreement dated February 25, 1991, between Paul Saben, Richard Earlix, Loretta Orme, and Robert Fillet (Fillet), which provided an apparent funding mechanism for Silver Sage to undertake litigation against the city (the Fillet Agreement). Under the Fillet Agreement, Fillet undertook financial responsibility for Silver Sage’s legal fees in exchange for a 50 percent interest in future partnership profits. Fillet also became managing partner of Silver Sage, with the right to select legal counsel to commence litigation against the city. The Fillet Agreement reflected that Fillet had chosen the Company as legal counsel, and a copy of an agreement with the Company was attached.
The record is unclear as to the precise involvement of each of these persons with Silver Sage and the exact ownership of Silver Sage.
Also on February 25, 1991, Fillet entered into the above described agreement with the Company — the second of the five agreements. Via that agreement, Fillet engaged the Company to pursue litigation against the city (the Retainer Agreement). The Retainer Agreement provided that the Company would be paid a nonrefundable fee of $25,000 and receive “20% of any gross amount from any damage award or settlement received in state or federal court as a result of pursuing this action.” The Retainer Agreement provided in addition, that “in the event [the Company was] successful in obtaining approval of the project so that it [could] be completed, [the Company] would receive 20% of the funds actually received by the partnership (excluding operational income) of the project.”
The third agreement was dated December 7, 1991. It was a letter agreement written by Davis, on behalf of the Company, and addressed to Fillet (the Retainer Modification Agreement). The agreement alluded to further financial strain and possible breaches of existing fee arrangements. In resolution of apparent difficulties, the Retainer Modification Agreement provided: “The partnership interest which you have in the Silver Sage Partnership, which is a net 40% interest since both your interest and those of Messrs. Saben and Earlix, the other 40%, are subject to my firm’s interest of 20%, and any and all profits of the partnership and/or attorney’s fees will be assigned automatically by written request by either me or anyone acting on my behalf, to the extent that 30% of this interest will be transferred. Ten percent of the interest will remain yours . . . .”
The fourth agreement was entered into on March 28, 2002, apparently after the Silver Sage judgment had been obtained against the city (the Insurance Collection Agreement). It was signed by Davis on behalf of the Company, Fillet as managing general partner of Silver Sage, Fillet individually, and Paul Saben, Richard Earlix, and Michael Linsk, each individually. Pursuant to the Insurance Collection Agreement, the Company was hired “[t]o obtain satisfaction of the Silver Sage judgments stemming from Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001), against the City of Desert Hot Springs’ liability insurance or indemnity carrier(s) by taking all appropriate actions to reach a disposition by settlement or judgment, including litigation.” The Insurance Collection Agreement provided that the Company would be entitled to a contingency fee of $150,000 from a settlement or judgment at the trial level, plus an additional contingency fee of $100,000 in the case of an appeal.
The fifth agreement was dated September 12, 2002, and was between the Company and Silver Sage (the General Collection Agreement). The General Collection Agreement was signed by Davis on behalf of the Company and Fillet as managing general partner of Silver Sage. In this final agreement, the Company was hired “[t]o obtain satisfaction (payment) of all of the Silver Sage judgments stemming from Silver Sage Partners, Ltd. v City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001), and related proceedings against the City of Desert Hot Springs, other than from the City’s liability insurance or indemnity carrier(s), by taking all appropriate actions to collect all judgments, including protecting the judgment(s) in the City’s bankruptcy and in any proceedings related to it.” (Footnote omitted.) The General Collection Agreement provided that the Company would “be compensated for legal services based only upon an award of fees and expenses by the Courts and actually paid by the City.”
C. PREVAILING PARTIES IN SABEN LITIGATION:
In both Motion No. 1 and Motion No. 2, Davis and the Company claimed to be prevailing parties entitled to fees under the Insurance Collection Agreement of March 28, 2002 and the General Collection Agreement of September 12, 2002. However, the Saben litigation arose out of the Fillet Agreement. In the Saben litigation, Saben sought a declaration that the partnership interest of Fillet had been extinguished under paragraph 9 of the Fillet Agreement, and also sought damages for breach of fiduciary duty. The possible extinction of Fillet’s partnership interest was understandably a matter of concern to Davis and the Company, since Fillet had assigned to them 30 percent of certain partnership rights. Consequently, they intervened due to “their concern that Saben’s attempt to extinguish Fillet’s partnership interest put at risk the share of the judgment that he had assigned to them.” (Saben I, supra, 134 Cal.App.4th at p. 1027.) Davis and the Company cite no portion of the record showing that Saben put their rights under either the Insurance Collection Agreement or the General Collection Agreement at issue in the Saben litigation.
We do not pass upon the exact nature of the assignments made under either the Retainer Agreement or the Retainer Modification Agreement.
Consequently, as Saben argues, Davis and the Company could not be prevailing parties under either the Insurance Collection Agreement, dated March 28, 2002, or the General Collection Agreement, dated September 12, 2002. The obvious reason why Davis and the Company assert that those two agreements form the basis for an attorney fees award is that each of those two agreements contains a prevailing parties provision. None of the other agreements contains a prevailing parties provision — not the Fillet Agreement, not the Retainer Agreement, and not the Retainer Modification Agreement.
Davis and the Company state that this matter cannot be considered on appeal because Saben did not file a cross-appeal from the order denying the motion for attorney fees. As Davis and the Company see it, the order contained a finding to the effect that they were the prevailing parties and because Saben did not file a cross-appeal, that finding cannot now be undone. However, the trial court did not make a finding that any of the agreements at issue in the Saben litigation contained a prevailing party provision that supported an award of attorney fees. Rather, the court simply denied the attorney fees motions. In so doing, it indicated that Trope v. Katz, supra, 11 Cal.4th 274 made the recovery of attorney fees impermissible. However, we affirm the decision of the trial court if it is correct on any ground. We need not confine our analysis to the reasoning of the trial court, and may address Saben’s alternate grounds for affirmance, irrespective of whether Saben filed a cross-appeal. (Warmington Old Town Associates v. Tustin Unified School Dist., supra, 101 Cal.App.4th at p. 864.)
Davis and the Company have additional reasons why they insist their prevailing party status cannot be considered on appeal, based on the court’s October 3, 2003 summary judgment order. As we explained in Saben I, supra, 134 Cal.App.4th 1024, “Davis and the Company filed a motion for summary judgment [in the Saben litigation]. The court granted the motion and a formal order was filed on October 3, 2003.” (Id. at p. 1027, fn. omitted.) While the order contained numerous factual findings, it contained no conclusions of law and did not direct the entry of judgment. No summary judgment was entered and Saben and Fillet continued to litigate. (Id. at pp. 1027-1028.)
Davis and the Company cite no portion of the record containing a copy of the motion for summary judgment.
Davis and the Company fixate on the findings as contained in the October 3, 2003 order, and maintain that those findings resolve their entitlement to fees under the Insurance Collection Agreement and the General Collection Agreement. They insist that Saben is bound by those findings and cannot challenge them on appeal because Saben consented to the findings, and after they were entered, dismissed the complaint with prejudice.
The October 3, 2003 findings are as follows: “1. It is undisputed that Davis & Company fully performed the Davis-Silver Sage Fee Agreement by successfully litigating the Silver Sage case to a final judgment. [Citation.] [¶] 2. It is also undisputed that under the terms of that agreement, Davis & Company obtained the right to receive twenty percent (20%) of any monetary judgments, attorney’s fees and interest actually awarded and collected by Silver Sage as well as full reimbursement of all costs and expenses incurred in litigating the Silver Sage case. [Citation.] [¶] 3. It is also undisputed that Davis & Company fully performed its obligations under the various agreements among the parties by litigating the Silver Sage case to a final judgment. [Citation.] [¶] 4. It is also undisputed that by doing so, Davis & Company obtained the right to receive an additional thirty percent (30%) interest in any monetary judgments, attorney’s fees and interest actually awarded and collected by Silver Sage. [Citation.] [¶] 5. Thus, it is undisputed that, in the aggregate, Davis & Company is entitled to be reimbursed for all costs and expenses incurred in litigating the Silver Sage case and to receive fifty percent (50%) of all damages amounts and interest and attorney’s fees (for legal work performed up to June 1, 2001 [the date the opinion was filed in Silver Sage Partners, Ltd. v. City of Desert Hot Springs (2001) 251 F.3d 814]) actually awarded to and collected by Silver Sage in the Silver Sage case. [Citation.] [¶] 6. It is also undisputed that on March 28, 2002, Silver Sage and Davis & Company entered into a separate fee agreement concerning Silver Sage’s post-judgment pursuit of insurance-type benefits against PERMA, and any other insurance or insurance-type liability/indemnity carrier for the City of Desert Hot Springs. [Citation.] [¶] 7. It is also undisputed that under the March 28, 2002 agreement, Davis & Company is entitled to a separate fee and cost reimbursement, if actually awarded to and collected by Silver Sage, as set forth in that agreement. [Citation.] [¶] 8. Finally, it is also undisputed that Davis & Company is entitled to receive all litigation costs and expenses and attorney’s fees actually awarded and collected for all post-judgment work, including, inter alia, for bankruptcy proceedings, judgment enforcement proceedings and civil rights injunctions proceedings. [Citation.] [¶] 9. As demonstrated by the fact that both plaintiff [Saben] and defendant Robert Fillet have filed a Notice of Non-Opposition to Davis & Company’s Motion for Summary Judgment, no other issues of material fact are disputed as to Davis & Company’s Motion for Summary Judgment.” (Underscoring omitted and italics added.)
The arguments of Davis and the Company are unavailing, for the October 2, 2003 findings simply do not operate as Davis and the Company aver. The findings make clear that Saben, while contesting certain issues vis-à-vis Fillet, was not placing at issue either the rights of Davis and the Company under the Retainer Agreement and the Retainer Modification Agreement to receive a cut of the judgment in the Silver Sage litigation, or for that matter, their rights to receive any sums due under the Insurance Collection Agreement and the General Collection Agreement. The fact that the parties desired to streamline the Saben litigation, once Davis and the Company intervened, by acknowledging certain agreements with Davis and the Company, did not mean that they meant to alter the terms of those agreements to include nonexistent prevailing party provisions. Furthermore, there is nothing in the October 2, 2003 findings that either purports to alter the terms of those agreements or purports to construe those agreements as stating that Davis and the Company are entitled to attorney fees in the Saben litigation as prevailing parties. The issue of prevailing party fees was unaddressed in the findings.
In conclusion, Davis and the Company claim an entitlement to attorney fees as prevailing parties under the Insurance Collection Agreement and the General Collection Agreement. However, in their briefing on appeal, they do explain how their entitlement to fees under either of those agreements necessitated their intervention in the Saben litigation. Rather, Saben commenced suit against Fillet to establish the respective rights of itself and Fillet under the Fillet Agreement and to obtain damages for Fillet’s purported breach of fiduciary duty. Davis and the Company intervened to protect their rights under the Retainer Agreement and the Retainer Modification Agreement, to the extent that those rights flowed from the Fillet Agreement. (Saben I, supra, 134 Cal.App.4th at p. 1027.) Indeed, they continue to argue on appeal that they “are entitled to their fees because they successfully staved off Saben’s attack upon Fillet’s share of the judgment proceeds in the Silver Sage litigation so that the compensation due them would not be reduced.” Because Davis and the Company cite no portion of the record to show that their intervention in the Saben litigation was required to protect their right to attorney fees as expressed in either the Insurance Collection Agreement or the General Collection Agreement, they fail to show that they were entitled to attorney fees as prevailing parties under either of those two agreements.
D. ENTITLEMENT TO STATUTORY FEES:
As reflected above, Davis and the Company, in Motion No. 1 and Motion No. 2, also cited Flannery v. Prentice, supra, 26 Cal.4th 572 in support of their entitlement to attorney fees. In that case, the court addressed a narrow question, i.e., “to whom, as between attorney and client, attorney fees awarded under Government Code section 12965 . . ., part of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), belong when no contractual agreement provides for their disposition.” (Flannery v. Prentice, supra, 26 Cal.4th at p. 575, fn. omitted.) The court held “that, absent proof on remand of an enforceable agreement to the contrary, the attorney fees awarded in this case belong to the attorneys who labored to earn them.” (Ibid.)
Flannery v. Prentice, supra, 26 Cal.4th 572 is inapposite. The Saben litigation did not have to do with the ownership of a statutory attorney fees award in the absence of a pertinent contractual provision. Rather, the litigation had to do with the enforcement of negotiated contract rights — first, the rights as between Saben and Fillet under the Fillet Agreement, and second, the rights of Davis and the Company under the Retainer Agreement and the Retainer Modification Agreement.
However, Davis and the Company cite Flannery v. Prentice, supra, 26 Cal.4th 572 for certain general language therein concerning the dilution of statutory attorney fees. The Flannery court stated: “Because contracts are not always obtainable or obtained and always may be disputed, were we to interpret section 12965 as plaintiff urges, vesting ownership of fees awarded thereunder and not disposed of by contract in the litigant, rather than in counsel, we would diminish the certainty that attorneys who undertake FEHA cases will be fully compensated, and to that extent we would dilute section 12965’s effectiveness at encouraging counsel to undertake FEHA litigation.” (Id. at p. 583.)
Government Code section 12965, at issue in Flannery v. Prentice, supra, 26 Cal.4th 572, then provided in pertinent part: “‘In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees . . . .’ (§ 12965, subd. (b).)” (Flannery v. Prentice, supra, 26 Cal.4th at p. 575, fn. 1.)
In the appeal before us, however, Davis and the Company cite no portion of the record to show that they intervened in the Saben litigation to protect a statutory fee award. Rather, they cite the Fillet Agreement, the Retainer Agreement, and the Retainer Modification Agreement, to show that they were entitled to a cut of the Silver Sage judgment as partnership income. The trial court did not err in omitting to apply Flannery v. Prentice, supra, 26 Cal.4th 572 in the context of the fight over partnership income.
On appeal, Davis and the Company desire to expand the scope of their arguments on statutory fee awards. However, we decline to consider arguments not presented to the trial court. (In re Santos Y., supra, 92 Cal.App.4th at p. 1303, fn. 15.) Furthermore, having determined that Davis and the Company are not entitled to attorney fees as prevailing parties, it is unnecessary for us to determine whether the principles of Trope v. Katz, supra, 11 Cal.4th 274 may apply to disallow a right to attorney fees otherwise established under federal law, or whether those principles, if properly applied, would disallow fees attributable to the services of persons other than Davis.
E. MOTION TO STRIKE/REQUEST FOR SANCTIONS:
Davis and the Company have filed a motion to strike parts VI through IX of Saben’s respondent’s brief. Their motion is based primarily on matters already addressed herein, i.e., whether Saben is precluded from arguing certain issues on appeal because of its consent to the October 3, 2003 findings, its voluntary dismissal of the complaint with prejudice, and its failure to file a cross-appeal. They also contend that Saben is attempting to raise new issues for the first time on appeal, such as the effect of the doctrine of merger. Finally, Davis and the Company request that this court strike the identified portions of Saben’s respondent’s brief due to line spacing and other formatting issues.
Saben has filed an opposition to the motion, claiming that the motion is based largely on a misrepresentation of the record. It has requested sanctions in the amount of $2,800 for attorney fees incurred in opposing what it characterizes as a frivolous motion. Davis and the Company have filed an opposition to the request for sanctions.
The motion to strike is denied. For reasons already discussed, Saben’s consent to the October 3, 2003 findings, its voluntary dismissal with prejudice, and its failure to file a cross-appeal, do not operate as the procedural bars Davis and the Company contend. Furthermore, we have not considered Saben’s argument about the doctrine of merger in this opinion. Finally, we decline to strike any portion of Saben’s respondent’s brief due to formatting issues.
While we disagree with Davis and the Company’s characterization of the October 3, 2003 findings and the July 17, 2006 order denying attorney fees, we do not find their characterization to be so egregious as to warrant sanctions. Consequently, we also deny Saben’s request for sanctions.
III
DISPOSITION
The order is affirmed. Saben shall recover its costs on appeal. The motion of Davis and the Company to strike portions of Saben’s respondent’s brief is denied. Saben’s request for sanctions is denied.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.