Opinion
B322178
09-26-2023
PALM FINANCE CORPORATION, Plaintiff and Respondent, v. SUSAN HOFFMAN, Defendant and Appellant.
Stillman & Associates and Philip H. Stillman for Defendant and Appellant. Kurtz Law and John F. Kurtz, Jr., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from the judgment of the Superior Court of Los Angeles County, No. 20SMCV00366 Elaine W. Mandel, Judge. Affirmed.
Stillman & Associates and Philip H. Stillman for Defendant and Appellant.
Kurtz Law and John F. Kurtz, Jr., for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In November 2014, Susan Hoffman (Hoffman) borrowed $150,000 from Palm Finance Corporation (Palm Finance), pursuant to a promissory note. She subsequently breached the note by failing to repay the loan on its November 13, 2016 maturity date.
On March 6, 2020-approximately three years and four months after the November 13, 2016 breach-Palm Finance filed suit against Hoffman to recover the outstanding amounts due under the note. Hoffman did not dispute that she breached the note, and Palm Finance moved for summary judgment on its claim.
In opposition to the motion, Hoffman argued that Palm Finance had failed to file its complaint within the four-year statute of limitations applicable to claims for breach of a written contract. (See Code Civ. Proc., § 337, subd. (a).) She disputed Palm Finance's contention that she had made a payment on the note in September 2018 that extended the operative statute of limitations. In addition, she asserted that she had first breached the note on February 1, 2015, when she failed to pay a required interest installment. That February 2015 breach, she urged, commenced the four-year limitations period with respect to all amounts due under the note, and Palm Finance therefore had filed its March 2020 complaint over one year late.
All subsequent statutory references are to the Code of Civil Procedure. Section 337, subdivision (a) provides, in relevant part, that "[a]n action upon any contract, obligation or liability founded upon an instrument in writing" must be commenced "[w]ithin four years." (§ 337, subd. (a).)
The trial court rejected Hoffman's contentions. It agreed with Palm Finance that Hoffman's February 2015 breach did not trigger the limitations period applicable to her separate November 2016 breach because the statute of limitations for an installment contract runs from the date each individual installment comes due. (See Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 200 (Conway).) In addition, the court concluded that Palm Finance had demonstrated-through a mathematical calculation set forth in a surreply in support of its motion-that its requested damages consisted solely of amounts that had accrued within the limitations period. The court therefore granted Palm Finance's motion and entered judgment in its favor.
Hoffman now asks us to reverse the trial court's order granting summary judgment, advancing three arguments in support of her request. First, she contends that the parties' factual dispute concerning the alleged September 2018 payment precludes summary judgment. Second, she insists that the court improperly relied on evidence absent from Palm Finance's separate statement of undisputed facts in granting its motion. Third, she urges that the court erred by failing to grant her a continuance to conduct discovery concerning (1) the calculations presented in Palm Finance's surreply, and (2) whether Palm Finance invoked the note's optional acceleration provision in response to her February 1, 2015 breach-an act Hoffman contends would have commenced the limitations period in 2015, thus rendering Palm Finance's claim time-barred.
We disagree with each of Hoffman's contentions. We conclude that any factual dispute concerning the alleged September 2018 payment is immaterial because Palm Finance filed its complaint within four years of the note's maturity date. Further, the record does not support that the court improperly considered evidence not included in Palm Finance's separate statement in granting summary judgment. Finally, we conclude that Hoffman forfeited her argument concerning the need for additional discovery by failing to seek a continuance to permit such discovery from the trial court. We therefore affirm the court's judgment in favor of Palm Finance.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
A. Overview
On November 13, 2014, Hoffman executed a promissory note memorializing the terms of Palm Finance's agreement to lend her $150,000. Pursuant to the note, Hoffman agreed to pay quarterly installments of interest during the 24-month term of the loan (at a rate of 5 percent per annum during the first year and then at a rate of 10 percent per annum). The note provided further that the full principal amount, as well as any unpaid accrued interest, would come due on the loan's November 13, 2016 maturity date:
"So long as no event of default occurs as a result of which [Palm Finance] declares this note immediately due and payable, all amounts of unpaid accrued interest and unpaid principal shall be due and payable in full twenty-four (24) months from the date of this note ('maturity date') or on such earlier date as said amounts become due as a result of acceleration as hereinafter provided." (Boldface &capitalization omitted.)
The note also included an optional acceleration provision permitting Palm Finance to, inter alia, "[d]eclare the entire unpaid principal balance of [the] note, together with all accrued interest and other charges immediately due and payable" in the event Hoffman "fail[ed] to make any payment of principal, interest or any other amount on the date the same [was] due and payable under [the] note." (Capitalization omitted.)
Hoffman failed to repay the loan principal and other amounts due on the note's November 13, 2016 maturity date. On March 6, 2020, Palm Finance therefore filed suit against Hoffman, asserting a single cause of action for breach of promissory note.
In her May 12, 2020 answer to Palm Finance's complaint, Hoffman asserted seven "additional defenses" (boldface, capitalization &underscoring omitted), including the affirmative defense of "statute of limitations/laches." (Capitalization omitted.) Hoffman, however, failed to pursue any discovery from Palm Finance in support of her statute of limitations defense during the 14 months that then elapsed between the filing of her answer and Palm Finance's motion for summary judgment.
On July 26, 2021, Palm Finance moved for summary judgment, arguing that Hoffman had failed to pay the outstanding amounts owed under the note. In support of its motion, Palm Finance included as "undisputed material facts" in its separate statement (1) the original principal balance of the loan ($150,000), (2) the terms of the note governing the calculation of interest, (3) the note's November 13, 2016 maturity date, (4) the fact that Hoffman had made only one payment on the note, in the amount of $7,500 on September 18, 2018, (5) the amount owed on the note as of September 18, 2018, prior to Hoffman's $7,500 payment ($125,319.14), and (6) the amount owed on the note as of the last business day before Palm Finance moved for summary judgment ($147,849.19). (Boldface &capitalization omitted.)
Palm Finance also briefly addressed in its motion Hoffman's various affirmative defenses. With respect to the statute of limitations, Palm Finance argued that it had filed its claim within the applicable four-year limitations period for two independent reasons. First, it urged that Hoffman's September 18, 2018 payment had "extend[ed] the commencement of the running of the statute of limitations from . . . date of that payment," pursuant to section 360. Second, it argued that-irrespective of any extension of the limitations period-it had timely filed its suit on March 6, 2020, well within four years of Hoffman's November 13, 2016 breach. Palm Finance submitted a declaration from its chief financial officer, Robert Frcek (Frcek), in support of the motion.
Many of Hoffman's other affirmative defenses related to a parallel bankruptcy proceeding involving AMAG, Inc., an entity that Hoffman describes as an affiliate of Palm Finance. Hoffman does not challenge the trial court's rejection of her additional defenses on appeal, and we therefore omit any further discussion of those defenses.
Section 360 provides, in relevant part: "[A]ny payment on account of principal or interest due on a promissory note made by the party to be charged shall be deemed a sufficient acknowledgment or promise of a continuing contract to stop, from time to time as any such payment is made, the running of the time within which an action may be commenced upon the principal sum or upon any installment of principal or interest due on such note, and to start the running of a new period of time, but no such payment of itself shall revive a cause of action once barred." (§ 360.)
In opposition, Hoffman did not dispute her failure to repay the amounts due under the note on the November 13, 2016 maturity date. Instead, she submitted a declaration in which she attested that she never made the September 18, 2018 payment, and argued that her declaration created a disputed issue of material fact that precluded summary judgment. Hoffman also filed evidentiary objections to the portions of the Frcek declaration concerning the alleged September 2018 payment. In addition, Hoffman argued that the statute of limitations had expired in 2019-more than a year before Palm Finance filed its complaint-because the limitations period had commenced on February 1, 2015, when she failed to pay one of the quarterly interest installments required under the note.
In her response to Palm Finance's separate statement, Hoffman disputes that the note's maturity date fell on November 13, 2016. The only evidence to which she cites in support of this purported factual dispute is paragraph 2 of her declaration, which provides in relevant part: "I defaulted on the note when I did not pay the interest due on February 1, 2015 pursuant to the terms of paragraph (a) of the note." (Capitalization omitted.) This statement, however, is insufficient to demonstrate a dispute concerning the maturity date set forth on the face of the note. (See, e.g., Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525 [" '[a]n issue of fact can only be created by a conflict of evidence' "]; id. at p. 529 ["although the [plaintiffs] assert that a number of the facts that [defendant] listed as undisputed in his motion for summary judgment were actually in dispute, a careful review of the evidence reveals that no disputes as to material fact exist"].)
Palm Finance countered in its reply brief that any dispute concerning the September 2018 payment should not preclude summary judgment. Whether that payment had extended the limitations period was irrelevant, Palm Finance argued, because it had brought suit within four years of Hoffman's November 13, 2016 breach.
Palm Finance argued further that Hoffman's failure to pay the February 1, 2015 quarterly interest installment had no impact on the limitations period applicable to her separate November 13, 2016 breach because the statute of limitations for an installment contract runs from the date each individual installment comes due. It conceded that Hoffman's February 2015 breach conceivably might be relevant to the statute of limitations analysis in one circumstance: if Palm Finance had invoked the note's optional acceleration provision in response to the breach and had demanded immediate, full repayment of the note in February 2015. Palm Finance pointed out, however, that Hoffman had submitted no evidence demonstrating that it had taken any action to invoke the provision. And it submitted a second declaration from Frcek, the chief financial officer, affirmatively attesting that Palm Finance had never exercised its right to invoke that provision.
On October 22, 2021, the trial court conducted a hearing on Palm Finance's summary judgment motion. At the outset of the hearing, the court provided the parties with a copy of its tentative ruling denying the motion, in which it concluded that two disputed issues of fact precluded summary judgment: (1) the parties' dispute concerning the 2018 payment, and (2) the possibility that Palm Finance's requested damages included time-barred amounts (such as Hoffman's missed February 1, 2015 interest payment) that accrued prior to the note's November 13, 2016 maturity date. At the conclusion of the hearing, the court authorized each party to file a surreply addressing the issues raised during argument.
The record on appeal does not contain a transcript of the October 22, 2021 summary judgment hearing.
In its surreply, Palm Finance reiterated that the 2018 payment provided merely an alternative basis for rejecting
Hoffman's statute of limitations defense, and that the parties' dispute concerning that payment therefore should not preclude summary judgment. And in response to the court's concern that the 2015 breach might bar some portions of the damages sought in the complaint, Palm Finance provided a mathematical calculation demonstrating that the damages it sought necessarily accrued within the four-year limitations period:
"[I]t cannot be reasonably disputed that Palm Finance is only seeking to recover the unpaid principal balance of $103,698.63 and interest that has accrued at the rate of 10 [percent] per annum, which is a per diem rate of $28.41 ($103,698.63 x 10 [percent]= $10,369.86 and $10,369.86 divided by 365 days = $28.41 per day), and that all of the interest claimed by Palm Finance became due after August 18, 2016, which is less than four years before the [c]omplaint was filed in this case. [¶] . . . [A]s of September 18, 2018, the balance of the loan that remained unpaid that Palm Finance seeks to collect consisted of principal in the amount of $103,698.63 and accrued interest in the amount of $21,620.51, for a total claim as of that date in the amount of $125,319.14. [¶] Based on a per diem interest rate of $28.41 the claimed interest amount of $21,620.51 as of September 18, 2018 is equal to 761 days of interest ($21,620.51 divided by $28.41 = 761 days of interest). A total of 761 days is two years and 31 days. Two years and 31 days prior to September 18, 2018 is August 18, 2016."
Palm Finance also clarified that it was "not seeking to recover [the February 1, 2015 interest] installment payment."
Hoffman argued in her responsive surreply that the trial court should disregard the calculation because Palm Finance did not include the math in its separate statement. She did not, however, identify any errors in the calculation, nor did she argue that Palm Finance failed to include in its separate statement each figure necessary to perform the calculation. Hoffman argued further that the court should disregard Palm Finance's assertion in its reply brief that it never invoked the note's optional acceleration provision because that purportedly new fact also was absent from Palm Finance's separate statement. Had Palm Finance "properly included its new facts in the [separate statement]," Hoffman urged, then she "could have and would have sought a continuance of the [motion for summary judgment] or its denial, based on the need for discovery concerning these new facts."
Following the parties' submission of their surreplies, the trial court held a further hearing on the summary judgment motion and took the matter under submission. On January 11, 2022, the court issued a written ruling granting the motion, in which it explained that Palm Finance's surreply had "addressed the court's prior concerns" regarding the timeliness of its claims. In addition, the court rejected Hoffman's argument that Palm Finance "improperly included [in its surreply] new evidence not part of its original separate statement," concluding the surreply "[was] not based on new evidence but a mathematical analysis of the damages sought in the complaint."
Although the court's tentative ruling indicated its intention to overrule Hoffman's evidentiary objections to the portions of Frcek's declaration concerning the September 2018 payment, the final order granting summary judgment makes no reference to Hoffman's evidentiary objections.
B. Notices of Appeal
On January 31, 2022, Hoffman filed a notice purporting to appeal from the January 11 order. On March 17, 2022, the clerk notified Hoffman that the January 11, 2022 order was nonappealable (see, e.g., Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7) and directed Hoffman to provide an appealable judgment within 15 days-i.e., by April 1, 2022. The notice advised Hoffman that "[f]ailure to provide an appealable judgment or file a response within the time provided may result in the appeal being dismissed without further notice."
On March 29, 2022-three days prior to the deadline for Hoffman to respond to the clerk's notice-the trial court entered the final judgment in the action. Palm Finance served Hoffman with the judgment on May 2, 2022, thereby triggering the start of the 60-day period-ending on July 1, 2022- for Hoffman to file a timely notice of appeal. (See Cal. Rules of Court, rule 8.104(a)(1)(B).)
Notwithstanding her receipt of the final judgment, Hoffman failed to respond to the clerk's March 17 notice for three months. Accordingly, on June 17, 2022, the clerk issued a notice dismissing Hoffman's appeal "as having been taken from a nonappealable order."
On June 20, 2022, Hoffman filed a motion to reinstate her appeal, arguing that her counsel never received the clerk's March 17 notice. She attached a copy of the final judgment to the motion and argued that, because her 60-day period for filing a notice of appeal had not yet expired, the court should construe her premature notice of appeal as taken from the final judgment.
On July 5, 2022-four days after Hoffman's 60-day period for filing a notice of appeal expired-Palm Finance filed an opposition to the motion to reinstate the appeal. Palm Finance argued that Hoffman's motion failed to comply with California Rules of Court, rule 8.54(a), because Hoffman did not file a separate memorandum or a declaration in support of the motion. It argued further that "to properly preserve a right to appeal, Hoffman was required to file a new notice of appeal within 60 days after Palm Finance served the judgment on Hoffman and not simply a motion that did not comply with the express requirements of [California Rules of Court, rule] 8.54(a)." (Ibid.)
California Rules of Court, rule 8.54(a)(2) provides, in relevant part: "A motion must be accompanied by a memorandum and, if it is based on matters outside the record, by declarations or other supporting evidence." (Cal. Rules of Court, rule 8.54(a)(2).)
On July 15, 2022, we summarily denied Hoffman's motion to reinstate her appeal. Hoffman refiled her notice of appeal under a new case number-this time attaching the final, appealable judgment in favor of Palm Finance-four days later.
DISCUSSION
A. We Elect To Exercise Our Discretion To Consider Hoffman's Prematurely Filed Appeal
We first address Palm Finance's request that we dismiss Hoffman's appeal as untimely. We decline the request.
Hoffman does not dispute that she initially attempted to appeal from the court's nonappealable order granting summary judgment, and that her first notice of appeal therefore was premature. (See Levy, supra, 108 Cal.App.4th at p. 761, fn. 7 ["As numerous published appellate opinions have pointed out, an order granting summary judgment is not an appealable order. [Citations.] The appeal must be taken, instead, from a judgment entered on the basis of the summary judgment order"].) And we agree with Palm Finance that Hoffman filed her notice of appeal from the appealable final judgment outside the 60-day window for filing a timely notice of appeal.
Palm Finance ignores, however, that (1) Hoffman filed her premature notice of appeal-as well as a copy of the final judgment-prior to that 60-day deadline, and (2) Hoffman refiled her notice of appeal only because the clerk dismissed her initial appeal for reasons unrelated to timeliness. Palm Finance points to no authority holding that an appellate court loses its discretion to entertain a premature appeal under such circumstances. (See Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69 (Boyer) [appellate courts have "discretion to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice"].)
Here, Hoffman has provided a copy of the final judgment, there is no doubt that she seeks review of the summary judgment ruling resulting in that judgment, and Palm Finance does not contend that it was "misled to [its] prejudice" by the premature notice of appeal. (Boyer, supra, 129 Cal.App.4th at p. 69 .) We therefore exercise our discretion to consider Hoffman's appeal on the merits.
In light of our conclusion, we need not address Hoffman's argument that Palm Finance's service of the final judgment was defective because it was "not entitled entry of judgment and did not attach the judgment." (Capitalization omitted.)
B. The Trial Court Properly Granted Summary Judgment in Favor of Palm Finance
Hoffman argues that the trial court erred in granting summary judgment to Palm Finance because there exist disputed issues of material fact concerning whether Palm Finance filed its complaint within the statute of limitations. We disagree.
"We review a trial court's granting [of] summary judgment de novo, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and [correctly] sustained.' [Citation.] We 'liberally constru[e] the evidence in support of the party opposing summary judgment and resolv[e] doubts concerning the evidence in favor of that party.' [Citation.]" (Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1034.)
With certain exceptions inapplicable here, a plaintiff must file an action for breach of a written contract-such as a promissory note-within four years of the breach. (See § 337.) Here, the record establishes that Palm Finance filed its complaint well within that four-year period.
The note specifies that Hoffman must repay any outstanding amounts due by the loan's November 13, 2016 maturity date. Hoffman does not dispute that she breached the note by failing to pay the amounts due by November 13, 2016. Palm Finance filed its action to collect on the note on March 6, 2020, approximately three years and four months following the date of Hoffman's breach. Palm Finance therefore filed its complaint within the applicable four-year statute of limitations. (§ 337.)
None of Hoffman's three arguments in opposition persuades us otherwise.
First, she contends that the parties' dispute concerning whether she made a payment on the note on September 18, 2018- thereby extending the statute of limitations, pursuant to section 360-precludes summary judgment. But any dispute over the alleged 2018 payment is not material to our statute of limitations analysis because the undisputed facts demonstrate that Palm Finance filed its complaint within the four-year limitations period following Hoffman's November 13, 2016 breach.
In light of our conclusion, we need not address Hoffman's argument that the trial court erred in disregarding her evidentiary objections to portions of the Frcek declaration concerning the alleged 2018 payment.
Second, Hoffman argues that the trial court erred in granting summary judgment on the basis of evidence not contained in Palm Finance's separate statement-namely, (1) Palm Finance's calculation in its surreply demonstrating that it seeks only damages that accrued within the statute of limitations, and (2) Frcek's statement in his reply declaration that Palm Finance never invoked the note's operational acceleration provision.
The court did not err in considering Palm Finance's calculation. Hoffman does not identify any inaccuracies in the calculation, and she agrees in her response to Palm Finance's separate statement that each of the figures used to generate the calculation is undisputed. Moreover, Hoffman fails to provide any authority supporting her contention that simple arithmetics derived from facts contained in a party's separate statement constitute "new evidence" that a trial court must disregard on summary judgment.
With respect to the Frcek reply declaration, Hoffman ignores that she bore the burden of proving that Palm Finance invoked the optional acceleration provision-the key factual assertion on which her statute of limitations defense hinged. (See § 437c, subd. (p)(1) ["[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto"].) Hoffman does not dispute that the note at issue here is an installment contract, and that" 'the statute of limitations begins to run against the cause of action for the recovery of an unpaid installment at the time it is payable.' [Citations.]" (See Conway, supra, 105 Cal.App.3d at p. 200.) Thus, Hoffman's insistence that her February 1, 2015 failure to pay an interest installment commenced the limitations period with respect to all amounts due under the note depends on her contention that Palm Finance invoked the optional acceleration provision. Hoffman failed to present any evidence that Palm Finance did so. This failure justifies the trial court's rejection of her statute of limitations defense, irrespective of the contents of Frcek's reply declaration.
Hoffman urges that, pursuant to Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 967, this burden fell on Palm Finance. She is mistaken, however, as Professional Collection states that a defendant must shoulder the burden of demonstrating a disputed issue of material fact as to its affirmative defense once a plaintiff meets its initial summary judgment burden:" '[W]here the plaintiff has . . . moved for summary judgment[,] . . . [it] has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff "has proved each element of the cause of action entitling [it] to judgment on that cause of action." [Citation.] If the plaintiff meets this burden, it is up to the defendant "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." [Citation.]'" (Professional Collection, supra, 8 Cal.App.5th at p. 965, italics added.)
Third, Hoffman urges that the trial court erred in denying her request for discovery concerning Palm Finance's possible invocation of the optional acceleration provision and the calculation set forth in its surreply. As an initial matter, Hoffman forfeited this argument on appeal by failing to request an opportunity for such discovery before the trial court. (See Smith v. St. Jude Medical, Inc. (2013) 217 Cal.App.4th 313, 321 ["plaintiffs waived [the] argument [that they had an inadequate opportunity to conduct discovery prior to summary judgment] by not moving to continue the summary judgment hearing"].) She never moved for a continuance to permit additional discovery; instead, she merely argued that she "could have and would have" requested a continuance to permit such discovery had Palm Finance included in its separate statement the purportedly new evidence raised in its reply and surreply.
Moreover, Hoffman indisputably recognized-at the very outset of the case-the significance of discovery that might bear on the limitations period because she pleaded the statute of limitations as an affirmative defense in her answer. Yet she offers no adequate explanation justifying her decision not to pursue such discovery during the 14 months that elapsed between the filing of her answer and Palm Finance's filing of its summary judgment motion. She also fails to explain why the relevant discovery-which she describes as consisting of "correspondence among Palm [Finance], herself[,] and her husband"-is not already in her possession. On this record, we cannot conclude that the trial court erred by failing to permit additional discovery. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 251 ["the trial court's denial of appellants' request for a continuance . . . was not an abuse of discretion because appellant failed to make a good faith showing as to what facts essential to oppose summary judgment may have existed and why such facts could not have been discovered sooner"].)
We therefore are unpersuaded that we should reverse the trial court's judgment in favor of Palm Finance.
C. The Promissory Note Entitles Palm Finance to Reasonable Attorney Fees and Costs on Appeal
Finally, Palm Finance contends that, pursuant to the terms of the note, it is entitled to recover reasonable attorney fees and costs incurred in connection with this appeal. We agree.
"Pursuant to Civil Code section 1717, where a written contract expressly provides for the award of attorney fees, the prevailing party in an action under or relating to the contract is entitled to recover its fees, whether incurred at trial or on appeal. [Citations.]" (Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1111; see Civ. Code, § 1717, subd. (a).)
Here, the note expressly provides that "[i]n the event of a default under this note, in addition to principal, interest, and late charges owing hereunder, [Palm Finance] . . . shall be entitled to collect all costs, expenses, and fees of collection, including, but not limited to, reasonable attorneys' fees." (Capitalization omitted.) And Hoffman does not dispute that the note's terms entitle Palm Finance to reasonable attorney fees. Accordingly, we remand the matter with directions to award Palm Finance its reasonable attorney fees incurred on appeal, in an amount to be determined by the trial court.
DISPOSITION
We affirm the March 29, 2022 judgment. Respondent is awarded its costs on appeal. Respondent also is awarded its reasonable attorney fees on appeal, in an amount to be determined by the trial court.
We concur: CHANEY, J. WEINGART, J.