Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C9904100
Siggins, J.
James and Susan Steele appeal from an award of attorney fees to Chris Spina and Spina General Contracting, Inc. (collectively Spina), incurred in an earlier appeal that determined Spina was entitled to attorney fees in this litigation as a prevailing party. We conclude that Spina was entitled to attorney fees on appeal under the law of the case doctrine, and affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
This proceeding arises from issues decided in our previous opinion in Steele v. Spina (Aug. 28, 2009, A123860) [nonpub. opn.], where we affirmed the trial court’s award of attorney fees to Spina. Our previous opinion held that “the trial court correctly determined that it lacked jurisdiction over the Steeles’ motion [to enforce a settlement], and properly awarded attorney fees to Spina as the prevailing party.”
Following issuance of our decision, Spina moved to recover attorney fees incurred in the appeal, and the trial court awarded Spina $4,000 as requested. The trial court explained the basis of its order as follows: “The underlying motion brought by plaintiffs herein was based on a settlement agreement that contained an attorney’s fees provision. The appeal was based on that underlying motion and this court’s ruling. The Court of [A]ppeal affirmed the trial court’s ruling and awarded costs. Costs include attorney’s fees if provided by contract. (CCP sec. 1033.5.) The settlement agreement is a contract. If plaintiffs had prevailed on the underlying motion, they would have received costs and attorneys fees. But they did not prevail and they must pay.”
The award was made jointly against the Steeles and their counsel. The Steeles timely appeal.
DISCUSSION
The law of the case as established in our previous decision is that Spina was entitled to recover attorney fees incurred to oppose the Steeles’ motion to enforce the settlement. (See Cal. Rules of Court, rules 3.1702(c), 8.278(a), 8.891(d)(2).) A contractual provision that allows an award for attorney fees includes fees for services rendered on appeal as well as during trial. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272.)
The Steeles’ opening brief ignores this settled law, and instead contends that paragraph 23 of the parties’ settlement agreement prohibited any award of attorney fees after March 2002. In violation of California Rules of Court, rule 8.204(a)(1)(c), the Steeles’ briefs do not cite to the record when they refer to paragraph 23 of the settlement agreement. The clerk’s transcript does not include the agreement, and the Steeles acknowledge that as so constituted the record is incomplete.
Instead, the Steeles say the record in the prior appeal (A123860), includes paragraph 23 of the settlement agreement. It provides: “Each party shall bear their own attorneys’ fees and costs incurred in this action, subject to paragraph twenty (20) above.” But paragraph 20 of the agreement, quoted in our previous opinion, provides: “This is a judicially supervised settlement, and the court shall retain jurisdiction until all terms and conditions are met. In particular, should a defaulting act be alleged to have occurred under the terms of this Agreement, the court shall retain jurisdiction to determine whether a breach of the Settlement occurred and a Confession of Judgment should be entered against Spina. The court will also determine whether the prevailing party shall be entitled to attorneys’ fees and costs should enforcement of this settlement become necessary.”
Notwithstanding the agreement’s limiting provisions, the Steeles brought the earlier motion to enforce the settlement agreement which resulted in the award of attorney fees to Spina that was affirmed in our previous decision. The attorney fees issue was squarely decided against the Steeles in the previous appeal, and they are not entitled to a second bite of the apple.
In the previous appeal, we noted that both parties requested attorney fees in the trial court in connection with the Steeles’ motion to enforce the settlement, and the Steeles did not refute Spina’s argument that they would have been entitled to attorney fees had they prevailed on their motion. We also rejected the Steeles’ argument that “[o]nce the lower court (improperly) determined it had no jurisdiction, it also had no jurisdiction to grant attorney’s fees, ” citing Hsu v. Abbara (1995) 9 Cal.4th 863, 870-871.
The Steeles’ reply brief claims: “The awarding of fees in the prior appeal, A123860, does NOT control this situation because it affirmed that the dismissal occurred in 2002, so awarding fees after 2002 was in error by the express terms of the settlement agreement. When the Court of Appeal makes a mistake on a collateral matter, that does not make it the law of the case. Here, the ‘law of the case’ was that the dismissal occurred in March 2002.” The Steeles cite no legal authority to support these assertions. Our previous opinion clearly held that the trial court properly awarded attorney fees to Spina as the prevailing party on the Steeles’ motion to enforce the settlement. Spina is entitled to fees incurred as the prevailing party in the previous appeal.
The Steeles also contend the joint award against their counsel, Charles Kinney, was improper because Kinney was not a party to the settlement agreement that included the attorney fees provision. Spina does not oppose reversal of the award against Kinney, and absent any indication of the court’s reason for imposing such liability or citation to supporting authority, we will order that provision stricken from the trial court’s order. (See Civ. Code, § 1717.)
DISPOSITION
The order of the trial court is modified to delete the award of attorney fees against plaintiffs’ counsel, Charles Kinney. As modified, the order awarding Spina its attorney fees incurred on appeal is affirmed. Neither party is considered the prevailing party in this appeal for purposes of attorney fees. Each party is to bear its own costs.
We concur: McGuiness, P.J., Pollak, J.