Opinion
D040764.
11-5-2003
KEITH H. RUTMAN, Plaintiff and Appellant, v. RUSSELL BENNETT, Defendant and Respondent.
This is the second appeal in this contingency fee dispute. Keith H. Rutman, a licensed attorney, appeals a postremand judgment entered in favor of Russell Bennett on Rutmans complaint for declaratory relief and quantum meruit relating to legal services Rutman provided to Bennett under their contingency fee agreement (the agreement or original agreement). This matter arose out of the parties dispute concerning the interpretation of the agreement, and the amount of compensation and costs Rutman was entitled to receive under that agreement from the sum of $93,109.27 that was recovered (and retained by Rutman) as a result of the two underlying superior court actions¾Bennett v. Irvine Interactive China (Super. Ct. San Diego County, No. 696520, hereafter Irvine) and Bennett v. Infinity Internet (Super. Ct. San Diego County, No. 720965, hereafter Infinity Internet or the Infinity Internet fraudulent transfer action)¾and in a related bankruptcy proceeding¾In re Infinity Internet (Bankr. C.D.Cal., No. RS 98-24946-JR, hereafter In re Infinity) in which he represented Bennett.
Although the original trial court in this matter (Hon. Charles R. Hayes) referred to this case (No. 720965) as "Bennett v. Liang" in the original judgment, both the court on remand (Hon. John S. Meyer) in its statement of decision and Rutman in his briefing in this new appeal refer to this case as Bennett v. Infinity Internet. In an attempt to avoid confusion in this new appeal, we shall refer to case No. 720965 as Infinity Internet.
In this opinion, we shall refer to Infinity Internet and In re Infinity together as the Infinity fraudulent transfer/bankruptcy matter.
Both parties appealed from the original judgment entered by the trial court, the Honorable Charles R. Hayes presiding. In an unpublished opinion issued on January 22, 2002 (Rutman v. Bennett, D036046) (hereafter Rutman I), this court reversed the judgment in part and remanded the matter for further proceedings on specified issues.
After the remittitur issued, Judge Hayes removed himself from the case by granting Bennetts peremptory challenge under Code of Civil Procedure section 170.6, and this matter was reassigned to the Honorable John S. Meyer. After conducting a hearing, Judge Meyer entered a judgment (the remand judgment) that awarded to Rutman the aggregate sum of $57,729.53 (i.e., $ 31,036.42 in attorney fees plus $26,693.11 in litigation costs), and awarded to Bennett as restitution the sum of $35,379.74 (the balance of the $93,109.27 in recovered monies retained by Rutman) plus interest.
Rutman appeals, contending (1) there is insufficient evidence to justify the remand judgment, (2) the remand judgment is void because Judge Meyer materially varied from the specific directions set forth in this courts Rutman I opinion, (3) Judge Meyer should have granted him a new trial in light of claimed multiple errors, and (4) Judge Hayes should not have recused himself because Bennett had no right to file a peremptory challenge following Rutman I.
Claiming Judge Meyer erroneously failed to award him any fee for pursuing the underlying Infinity Internet fraudulent transfer action, Rutman also maintains that (5) Bennett is not entitled to any restitution, and (6) the court should have awarded him (Rutman) the sum of $31,673.57 in fees for his legal services in the Irvine case, plus $30,000 in quantum meruit compensation that Judge Hayes awarded to him in the original judgment for his legal services in the Infinity fraudulent transfer/bankruptcy matter, plus litigation costs in the amount of $26,693.11 that he incurred in the Irvine and Infinity Internet cases, plus additional unspecified costs in the amount of $401.32, plus interest in an amount exceeding $7,000, and a lien for fees in the amount of one-third of any future monies that Bennett may collect in this matter. Rutman thus contends his former client, Bennett, is entitled to none of the $93,109.27 recovered on Bennetts behalf. We reject Rutmans contentions and conclude Judge Meyer properly heard and decided this matter.
Rutman thus claims he is entitled to an aggregate sum in excess of $95,000, which exceeds the $ 93,109.27 recovered in the underlying cases.
FACTUAL BACKGROUND
This summary of the facts is taken primarily from the Rutman I opinion.
Bennett was a part owner of Irvine Interactive China, Inc. (Irvine Interactive), an Internet provider. A dispute arose between Bennett and the other owners of Irvine Interactive, and Bennett retained Rutman to provide him legal representation.
The Agreement
In January 1996 Bennett and Rutman entered into the contingency fee agreement at issue here, under which Rutman agreed to represent Bennett in connection with:
"(a) the anticipated dissolution of [Irvine Interactive] and the collection of all physical assets, monetary compensation and intellectual property rights to which [Bennett] might be entitled as a result of [his] ownership interest in said company;
"(b) [Bennetts defense] in the event [he is] sued by anyone associated with [Irvine Interactive] or companies with whom it has done business;
"(c) [] divesting David Liang of his minority interest in [Irvine Interactive]; and
"(d) bringing suit against Mr. Liang arising from the foregoing." (Italics added.)
The agreement provided for Rutman to be paid as follows:
"[M]y fee for investigating, filing and prosecuting/defending the aforementioned civil lawsuit(s) shall be one third of any recovery, exclusive of costs. This means that, regardless of whether you go to trial or settle, my fee shall be computed based on the total sum recovered. You shall also tender to me the amount of $4,000.00 as an advance toward the aforementioned contingency fee. The receipt of $2,000 is hereby acknowledged, with the balance due and payable in full prior to my appearance at a case management conference. You shall pay any costs out of your portion of the recovery. In the event of a trial, the costs are usually recoverable from the Defendant(s). At this time, the scope of this representation does not cover an appeal if one is determined to be necessary." (Italics added.)
The agreement also provided that if Rutman advanced "sums for various expenses, such as filing fees, deposition and court transcripts, expert witness fees, investigators fees, and other expenses," Bennett would reimburse Rutman and hold him "harmless from liability for these costs."
Irvine (Case No. 696520)
Thereafter, Rutman brought the Irvine action on Bennetts behalf by filing a complaint against Irvine Interactive, David Liang, and Martin Schmallacker for breach of contract, intentional infliction of emotional distress, conspiracy and battery, and obtained a judgment of over $200,000 plus costs in Bennetts favor.
Rutman then took action to collect on the Irvine judgment. He convinced Schmallacker to voluntarily pay his $ 4,000 judgment, and he obtained $13,361.42 from Liang through a sale of Liangs assets. The combined recovery from Liang and Schmallacker on the Irvine judgment thus totaled $ 17,361.42, which Rutman applied against costs.
Infinity Internet (Case No. 720965)
Rutman also filed the Infinity Internet lawsuit against Infinity Internet, Liang, Kien Trinh and Lee Yong Seow, alleging that Irvine Interactives assets had been fraudulently transferred to Infinity Internet, Seow and Liang. Prior to the initiation of this second lawsuit, Rutman and Bennett had not drawn up a new written attorney fee agreement but had agreed Bennett would pay on the same terms as the prior contingency fee agreement.
Infinity Internets Bankruptcy (In re Infinity) and $107,401 Settlement Offer
In July 1998 Infinity Internet filed for a chapter 11 bankruptcy (the In re Infinity bankruptcy case), and the Infinity Internet fraudulent transfer case was removed to the bankruptcy court. Rutman negotiated a settlement for $ 107,401 that also provided Infinity Internet would be liquidated and would pay the Irvine judgment that had been entered against Irvine Interactive, plus costs and interest. Bennett did not agree to the settlement because he wanted to take over Infinity Internet in exchange for dismissing his claim. Bennett offered to pay Rutman by giving him 48 percent of Infinity Internets stock. Rutman was not interested in Bennetts offer because he did not believe it was a good idea to go into business with clients generally and, in particular, he was not interested in going into business with Bennett "knowing [Bennetts] track record in terms of financial decisions." Rutman did not want payment of his fees to turn on whether Bennett could make the company profitable. Rutman brought a motion to withdraw from the case because there had been a breakdown in communications between himself and Bennett, and there was a conflict in interest because Bennett was opposing the sale of Infinity Internet that would adversely affect Rutmans ability to be paid since there would be no pool of money from which Rutman could be paid, and Rutman would be paid only after other creditors of Infinity Internet had been paid. Rutman withdrew this motion following the courts order that Infinity Internet be sold.
In January 1999 Bennett signed a substitution of attorneys in the In re Infinity bankruptcy case.
In early 1999 the In re Infinity bankruptcy case was converted from a chapter 11 proceeding to a chapter 7 proceeding, and Bennett filed a claim in that proceeding. The bankruptcy trustee notified Bennett there was $75,747.85 to be paid toward a judgment he obtained against Infinity Internet in the Infinity Internet fraudulent transfer case.
Bennetts Bankruptcy
In May 2001, Bennett filed for a chapter 7 bankruptcy, and the $75,747.85 recovered for payment of his Infinity Internet judgment against Infinity Internet was transferred to the trustee in Bennetts bankruptcy proceeding. In June of that year, the bankruptcy court granted Rutmans request for relief from the automatic stay, and the chapter 7 bankruptcy trustee paid the $75,747.85 to Rutman in satisfaction of his judgment lien claim.
In re Bennett (Bankr. C.D.Cal. 2001) No. SA01-14379 JB.
PROCEDURAL BACKGROUND
Portions of this summary of the somewhat convoluted procedural background of this case are taken from the Rutman I opinion.
In April 1999 after Infinity Internet filed for bankruptcy and before Bennett filed for bankruptcy, Rutman filed a complaint against Bennett for declaratory relief and quantum meruit compensation for attorney fees and costs he claimed Bennett owed to him.
Judge Hayess Decision and the Parties Appeals from the Original Judgment
In June 2000, following a bench trial in this matter, Judge Hayes entered a second amended judgment (the original judgment) without issuing a statement of decision. The original judgment provided:
"1. . . . [¶] A. The Court finds that Rutman is entitled, under [the agreement], to compensation for legal services rendered to and on behalf of Bennett in the [Irvine action], the total sum of $41,587.47, calculated as follows:
"i. Rutmans successful collection of the entire $4,000 judgment entered against defendant [Schmallacker], the sum of $ 1,333.33;
"ii. Rutmans successful collection of $13,361.42 from defendant [Liang] on account of a judgment entered against [Liang], the sum of $4,453.81;
"iii. Rutman secured an agreement for the payment of the entire judgment entered against [Irvine Interactive] in the amount of $107,401 (which represents the judgment and interest), the sum of $35,800.33.
"B. Rutman is entitled to a lien of one-third of any monies hereafter recovered under the judgments in the [Irvine action].
"2. The Court finds that Rutman is entitled to quantum meruit recovery on account of legal services provided to Bennett in connection with the [Infinity Internet and In re Infinity cases], the total sum of $30,000.
"3. The Court further finds that Rutman is entitled to reimbursement for litigation costs in the amount of $9,331.69 advanced by him on behalf of Bennett to third parties in the [Irvine and Infinity Internet actions].
"4. Therefore, the Court finds that Rutman has an enforceable lien in the total sum of $80,919.16 against any monies to be paid to Bennett in connection with the Chapter 7 Bankruptcy Claim he has filed in the [In re Infinity] action."
In sum, under Judge Hayess decision, Rutman obtained a judgment against Bennett in the amount of $41,587.47 in attorney fees under the agreement for services rendered in the Irvine action, plus a quantum meruit recovery in the amount of $30,000 for services rendered in the Infinity Internet and In re Infinity cases, plus reimbursement in the stipulated amount of $9,331.69 for litigation costs incurred in the Irvine and Infinity Internet cases, and a lien in the amount of $80,919.16 against any monies to be paid to Bennett in connection with Bennetts claim in the In re Infinity bankruptcy proceeding. Bennett received nothing from the judgments entered in his favor in the underlying cases. Both Rutman and Bennett appealed the original judgment entered by Judge Hayes.
Rutman I
In Rutman I, Rutman claimed that Judge Hayes erred by interpreting the agreement as providing that he was entitled to one-third of any money actually collected on behalf of Bennett, rather than one-third of a judgment or settlement obtained.
In his separate appeal, Bennett claimed the court erred (1) by calculating Rutmans one-third contingency fee based on the total amount of money recovered rather than on the net amount collected after deductions for costs and expenses; (2) by awarding Rutman one-third of the $107,401 settlement Rutman had been negotiating in the Infinity Internet fraudulent transfer case because that amount had not actually been collected and, under the agreement, Rutman was entitled only to one-third of monies actually collected; (3) by awarding Rutman $30,000 in attorney fees under a quantum meruit theory; (4) by awarding Rutman as attorney fees one-third of the sum of $17,361.42 Rutman had collected from Schmallacker and Liang on the Irvine judgment, a sum that Rutman admitted in his complaint he had applied to costs and claimed not to have received as fees; and (5) by ignoring evidence that Rutman had abandoned the case and therefore had no right to collect any fees.
In Rutman I, this court determined that:
1. Rutmans contingency fee was based on one-third of the money actually collected on behalf of Bennett, not on one-third of any judgments or proposed settlements.
2. Rutmans contingency fee was based on the gross, rather than the net, amount of money collected; Rutman thus was entitled to receive one-third of the total amount of money collected on Bennetts behalf, plus the costs incurred in representing Bennett; and Bennett was liable for payment of those costs out of his share of the total amount of money collected.
3. Rutman was not entitled to one-third (i.e., $35,800.33) of the $107,401 settlement offer that he negotiated and Bennett rejected, and thus the court erred in granting to Rutman a lien in the Infinity fraudulent transfer/bankruptcy matter to the extent the lien included one-third of a settlement amount that had not been collected.
4. Rutman was entitled to either a contingency fee under the agreement of one-third of the money collected in the Infinity fraudulent transfer/bankruptcy matter or a quantum meruit recovery in that matter, but not both; and remand was "necessary for the court to determine whether Rutman was entitled to a quantum meruit recovery for his work on the [Infinity] fraudulent transfer/bankruptcy case or whether he was entitled to one-third of the money paid in the bankruptcy case pursuant to the parties[] [agreement], e.g., as a collection action covered by the original agreement." (Fn. omitted.)
5. On remand, the court "may consider . . . whether Rutman was entitled to a lien in the bankruptcy court for $ 1,333.33 (one-third of the money collected from Schmallacker) and $4,453.81 (one-third of the money collected from Liang) since there is evidence suggesting Rutman may have already collected these amounts." (Italics added.)
6. On remand, if "appropriate," the court "may" address an apparent" ambiguity as to whether the courts award [to Rutman] of $9,331.69 in costs took into account the amount of money Rutman received from Schmallacker and Liang or whether the $9,331.69 is in addition to any part of Bennetts portion of the Liang and Schmallacker awards that Rutman applied to costs."
7. Substantial evidence showed that Rutman did not abandon the case.
This court issued the Rutman I opinion in January 2002, ordering that the matter be remanded to the trial court for further proceedings consistent with the opinion.
Post-Rutman I Remand Proceedings: Bennetts Peremptory Challenge, Judge Meyers Statement of Decision, and the Remand Judgment
In February 2002 Bennett filed in superior court a peremptory challenge under Code of Civil Procedure section 170.6 seeking to have Judge Hayes removed from the case. Judge Hayes denied the challenge on the ground it was premature in that the remittitur had not yet issued. Later that month, this court denied a motion that Bennett filed in this court seeking an order requiring that the proceedings on remand be heard by someone other than Judge Hayes.
The remittitur in this matter issued in March 2002. Later that month, Bennett filed another peremptory challenge against Judge Hayes under Code of Civil Procedure section 170.6, which Rutman opposed. Judge Hayes granted the challenge, removing himself from the case. The matter was reassigned to Judge Meyer.
In June 2002 Judge Meyer conducted a two-day hearing on the remanded proceedings. Although the record shows the parties had agreed the matter could be decided on the basis of the record presented to Judge Hayes and the parties briefs, Judge Meyer gave the parties the opportunity to present evidence, discuss the issues on remand as outlined in this courts Rutman I opinion, and orally argue their positions at length. Rutman had filed a 40-page brief, and Judge Meyer, at Rutmans request, took judicial notice of various documents without objection from Bennett.
In July 2002 Judge Meyer issued his written statement of decision, which contained the following 20 findings:
1. Rutman and Bennett entered into a written contingency fee agreement in January 1996.
2. The agreement applied to any lawsuits brought by Rutman on behalf of Bennett "`in connection with: (a) the anticipated dissolution of [Irvine Interactive] and the collection of all physical assets, monetary compensation and intellectual property rights to which [Bennett] [might] be entitled as a result of [his] ownership interest in said company; . . . (c) [] divesting [Liang] of his minority interest in [Irvine Interactive]; and (d) bringing suit against [Liang] arising from the foregoing." The agreement also stated, "`This letter will confirm that [Rutmans] fee for investigating, filing and prosecuting/defending the aforementioned civil lawsuit(s) shall be one third of any recovery, exclusive of costs."
3. The agreement applied to all amounts recovered on Bennetts behalf in the [Irvine] and [Infinity Internet] cases.
4. The amount recovered as a result of the Irvine case was $17,361.42.
5. The amount recovered as a result of the Infinity Internet case was $75,747.85.
6. The total amount recovered in both lawsuits is $93,109.27, which Rutman received and appropriated.
7. Under the agreement, Rutman is entitled to one-third of the $93,109.27 recovered on Bennetts behalf for his work on both lawsuits. One-third of $93,109.27 equals $ 31,036.42, which is the total amount of fees to which Rutman is entitled.
8. Under Business and Professions Code sections 6147, subdivision (a), and 6148, subdivision (a), any modification to the agreement had to be in writing.
9. The agreement was never modified.
10. There is no basis to award attorney fees in addition to the one-third of Bennetts recovery as agreed pursuant to the agreement.
11. "It is impossible for the [remand court], on the record before it, to award [Rutman] any sums based on an alternate theory of Quantum Meruit recovery."
12. Rutman advanced approximately $36,000 in costs.
13. Bennett reimbursed Rutman approximately $12,000 for advanced costs.
14. Rutman is entitled to retain approximately $24,000 in costs from the total sum recovered on behalf of Bennett. Of this amount, Rutman has already received $17,361.42, leaving a stipulated cost balance owing of $9,331.69.
15. The amount Rutman had already received and retained for costs advanced ($17,361.42) is added back to the total amount of recovery in order to calculate attorney fees.
16. Rutman is entitled to retain $17,361.42 for costs advanced, to retain an additional $9,331.69 as the stipulated balance of costs advanced, and to retain the sum of $ 31,036.42 for attorney fees, for an aggregate total of $57,729.53.
17. Bennett is entitled to the balance of the sums recovered on his behalf ($93,109.27), which totals $35,379.74.
18. As these sums were appropriated by Rutman and no portion of these sums was ever remitted to Bennett, Bennett is entitled to restitution from Rutman in the amount of $35,379.74.
19. Rutman is ordered to immediately pay to Bennett or deposit with the court on behalf of Bennett, the sum of $35,379.74.
20. A judgment shall be entered in favor of Bennett and against Rutman for restitution in the amount of $35,379.74.
In July 2002, consistent with the findings in his statement of decision (discussed, ante), Judge Meyer entered the remand judgment awarding to Rutman the sum of $57,729.53 (consisting of $31,036.42 in attorney fees plus $26,693.11 in litigation costs), and awarding to Bennett as restitution the sum of $35,379.74 (the balance of the $93,109.27 in recovered monies retained by Rutman) with interest at the rate of 10 percent per annum.
Rutmans New Appeal (Rutman II)
Rutmans timely appeal of the remand judgment followed. On October 28, 2002, this court granted Rutmans motion for judicial notice of 16 exhibits (Nos. 1-16), and denied that motion with respect to three other exhibits (Nos. 17-19).
DISCUSSION
I.
REMOVAL OF JUDGE HAYES (CODE CIV. PROC., & sect; 170.6)
Rutman challenges Judge Meyers decision and the resulting remand judgment by claiming Bennett had no right to file his post-Rutman I peremptory challenge motion under Code of Civil Procedure section 170.6 that resulted in Judge Hayess removal and the reassignment of this matter to Judge Meyer. We conclude that Bennett properly brought his peremptory challenge motion, and thus Judge Meyer properly heard this matter on remand.
As a preliminary matter, we note that Rutmans attempt to seek appellate review of Judge Hayess order granting Bennetts peremptory challenge motion is not cognizable on appeal. Code of Civil Procedure section 170.3, subdivision (d), provides:
"The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision . . . ." (Italics added.)
Citing this subdivision, the Court of Appeal in In re Sheila B. (1993) 19 Cal.App.4th 187, 192 (Sheila B.) held that an order granting a peremptory challenge motion brought under Code of Civil Procedure section 170.6 is not appealable. The Sheila B. court explained that "[t]he Legislature determined in enacting [Code of Civil Procedure] section 170.3, subdivision (d), that an appellate court should have an opportunity to redress an incorrectly decided [Code of Civil Procedure] section . . . 170.6 motion before the issue in the case is decided on the merits. We conclude this section is equally applicable to grants of [Code of Civil Procedure] section 170.6 challenges as to denials." (Sheila B., supra, at p. 195, italics added.)
Under the foregoing authorities, the sole means available to Rutman for obtaining appellate review of Judge Hayess order granting Bennetts peremptory challenge was a timely petition for writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); Sheila B., supra, 19 Cal.App.4th at pp. 192, 195.) Because Rutman failed to avail himself of this exclusive remedy, his claim that Judge Hayes improperly granted Bennetts peremptory challenge motion is not cognizable in this second appeal.
Even if Rutman were entitled to appellate review of this claim of error, we would reject the claim. Because Bennett filed his peremptory challenge motion after this court partially reversed the original judgment in our Rutman I decision, he brought that motion under the provisions of Code of Civil Procedure section 170.6, subdivision (2), which provides in part:
"A motion under this paragraph may be made . . . following reversal on appeal of a trial courts final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter." (Italics added.)
Rutman contends the remand proceeding that Judge Meyer conducted in this matter was not a "new trial" within the meaning of Code of Civil Procedure section 170.6, subdivision (2) (discussed, ante), and thus Bennett had no right to bring the challenge under that subdivision. We reject this contention.
In 1985, the Legislature amended Code of Civil Procedure section 170.6 and added the language that we must construe in the present case to subdivision (2). (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253.) In Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 573 (Stegs Investments), the Court of Appeal held that a party who obtains a partial reversal on appeal of a superior court judgment may bring a motion under that subdivision to "disqualify the original trial judge from presiding over the partial retrial of the case." The appellate court explained that "[Code of Civil Procedure s]ection 170.6 was amended in 1985 to permit a peremptory challenge to be made when the same trial judge is assigned for a new trial after reversal on appeal. Prior to the enactment of the 1985 amendment, a matter remanded by an appellate court for full or partial retrial was normally assigned to the same trial judge who heard the case at the trial level. This policy was based on the premise that the trial judge who presided over the first trial was familiar with the issues in the case and was in a better position to expeditiously resolve the matter pursuant to the appellate decision." (Stegs Investments, supra, at p. 575, italics added.)
The Stegs Investments court further explained that "[t]he legislative history of [Code Civ. Proc., § 170.6, subd. (2)] suggests that the applicability of that section does not turn on the whether the issue(s) to be resolved on remand are limited, but what the court must do to resolve them. If the courts function is merely a ministerial act (such as the recalculation of interest), the 1985 amendment does not apply. If, however, the court must conduct an actual retrial, even if that trial involves only one issue, the court may be disqualified upon a timely affidavit filed pursuant to [Code of Civil Procedure] section 170.6." (Stegs Investments, supra, 233 Cal.App.3d at p. 576, italics added.)
Here, Bennett obtained in Rutman I a partial reversal of the original judgment entered by Judge Hayes, and this court remanded the matter for a partial retrial. We conclude that Bennett had the right on remand under Code of Civil Procedure section 170.6, subdivision (2) to seek the removal of Judge Hayes by bringing a peremptory challenge motion under that subdivision, and thus Judge Hayes did not abuse his discretion by granting that motion. (Stegs Investments, supra, 233 Cal.App.3d at pp. 575, fn. 2, 576.)
In the disposition section of the Rutman I opinion, another panel of this court stated that "[t]he judgment is reversed and remanded in part for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed."
Rutmans reliance on the California Supreme Courts recent decision in Peracchi, supra, 30 Cal.4th 1245, is misplaced. In that case, the high court held that a remand for resentencing after a partial reversal in a criminal case is not a "new trial" within the meaning of Code of Civil Procedure section 170.6, subdivision (2), and thus does not permit a peremptory challenge under that statute. (Peracchi, supra, 30 Cal.4th at pp. 1249, 1257-1258.) The Peracchi court explained that its holding "avoids entangling courts in constitutional questions that are unique to criminal trials and that could arise if a resentencing hearing were to be considered a new trial. The conclusion we reach also avoids the obvious practical difficulties that would be imposed by the decision of the Court of Appeal¾a mandatory case-by-case analysis of the question whether a particular sentencing hearing on remand will involve the exercise of trial court discretion sufficient to qualify the proceeding as a new trial within the meaning of [Code of Civil Procedure] section 170.6, and a burdensome requirement that a new sentencing judge reexamine the factual basis for the verdict in order to perform his or her sentencing function." (Peracchi, supra, at p. 1263.) Peracchi is factually and legally distinguishable and has no application in this civil fee dispute case.
By letter dated September 8, 2003, after the briefing in this appeal was complete, Rutman cited the Peracchi decision (issued on June 23, 2003), asserting he believes that Peracchi "is dispositive on the issue of whether [Judge Hayes] erred in recusing himself in response to [Bennetts Code of Civil Procedure section] 170.6 motion. I believe that Peracchi answers the question in the affirmative."
II.
SUFFICIENCY OF THE EVIDENCE TO JUSTIFY THE REMAND JUDGMENT
Rutman also contends there is insufficient evidence to support the remand judgment. Specifically, he contends the evidence failed to support Judge Meyers findings that (1) the amount recovered as a result of the original underlying Irvine case was $17,361.42; (2) the amount recovered as a result of the Infinity fraudulent transfer/bankruptcy matter was $75,747.85; (3) there is no basis to award Rutman a $30,000 quantum meruit fee in addition to the one-third of Bennetts recovery as agreed pursuant to the agreement; and (4) Bennett is entitled to restitution from Rutman in the amount of $35,379.74. We reject these contentions.
A. Standard of Review
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) An appellate court is required to view the evidence in the light most favorable to the respondent, giving him or her the benefit of every reasonable inference and resolving all evidentiary conflicts in the respondents favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
On appeals challenging sufficiency of evidence, appellate courts review the record under the "substantial evidence" rule, under which the trier of facts resolution of disputed factual issues must be affirmed if it is supported by "substantial" evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
"`Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644.) `Substantial evidence . . . is not synonymous with "any" evidence. Instead, it is `"`substantial proof of the essentials which the law requires." [Citations.]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) "The focus is on the quality, rather than the quantity, of the evidence[, and] `[v]ery little solid evidence may be "substantial," while a lot of extremely weak evidence might be "insubstantial." [Citation.]" (Ibid.) Although "[i]nferences may constitute substantial evidence, . . . they must be the product of logic and reason[, and s]peculation or conjecture alone is not substantial evidence." (Ibid.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]" (Id. at p. 652.)
The testimony of a single credible witness, even if he or she is a party, may constitute "substantial evidence." (In re Marriage of Mix, supra, 14 Cal.3d at p. 614.) Evidence will be disregarded on appeal for credibility reasons only if it is inherently improbable, i.e., it must appear that the truth of the testimony was physically impossible or its falsity must be apparent without resorting to inferences or deductions. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) ¶ 8:53, p. 8-20 (rev. #1, 2001).)
B. Analysis
1. $17,361.42 recovery in the Irvine case
We first address Rutmans claim that the evidence does not support Judge Meyers finding that the sum of $17,361.42 was recovered on Bennetts behalf as a result of the Irvine case. Rutman asserts he recovered a greater sum in that case, and thus on remand Judge Meyer should have granted him a larger contingency fee award.
As this court noted in Rutman I, the original judgment indicated that Judge Hayes found Rutman had recovered on Bennetts behalf the sum of $17,361.42 in the Irvine case by collecting $4,000 from Schmallacker and $13,361.42 from the sale of Liangs assets. At the partial retrial following the Rutman I decision, Judge Meyer found, and both parties¾including Rutman¾agreed, that Rutman had recovered on Bennetts behalf the total sum of $93,109.27. During the retrial, Rutman also stated, and Judge Meyer found, that this recovery amount included $4,000 that Rutman collected from Schmallacker and $13,361.42 he recovered from Liang.
Judge Hayes did not issue a separate statement of decision.
$4,000 + $13,361.42 = $17,361.42.
On appeal, Rutman claims, apparently for the first time, that Judge Meyer miscalculated the amount recovered as a result of the judgment in the Irvine case and thus also miscalculated the total amount of money collected on Bennetts behalf. In support of this claim of error, Rutman appears to be arguing that in calculating the amount he recovered in the Irvine case, Judge Meyer failed to include the sum of $4,695 recovered as a result of a "seizure" of Liangs assets. Referring to the $4,695 in a footnote, Rutman states that "[Bennett] always had possession of this property, except for a period of time when he gave [Rutman] some items to try to sell. They were returned to Bennett." In his respondents brief, Bennett refers to this item as a "non-monetary recovery." The reporters transcript of the remand proceeding shows that, in apparent reference to this $4,695 item during the second day of the retrial, Rutman told Judge Meyer that Bennett "received $ 5,000 from the property from the marshals auction," and this amount was "counted in the 93,000." We construe Rutmans use of the term "93,000" to be a reference to the sum of $93,109.27, which Judge Meyer found was the total amount of money that Rutman collected on Bennetts behalf.
Rutman also asserts the total amounted he recovered on Bennetts behalf was $95,020.74, not the $93,109.27 on which the challenged remand judgment was based, and he complains that his one-third contingency fee under the agreement thus should have been $31,673.58 (one-third of $95,020.74), not $ 31,036.42 (one-third of $93,109.27) which Judge Meyer awarded to him. It thus appears that Rutman is complaining that Judge Meyer should have awarded him additional fees in the amount of $637.16.
Rutman asserts that "[t]he following sums were recovered in satisfaction of the `underlying [Irvine] judgment[:] [¶] $4,000 from [Schmallacker] (2/19/98)[;] [¶] $8,500 from the Marshals sale of [Liangs] seized assets (10/1/98)[;] [¶] $1,655 from the Marshals sale of [Liangs] seized assets (10/19/98)[;] [& para;] $422.89 from the Marshals sale of [Liangs] seized assets (11/5/98)[;] [¶] $4,695 which was credited toward the underlying judgment due to [Bennetts] purchase of assets at the Marshals sale of [Liangs] seized assets (10/24/98), and therefore should be considered in the calculation of [Rutmans] fee." (Original italics, boldface added, fn. omitted.) Rutman also states he collected an additional $75,747.85, which Judge Meyer found he had recovered as a result of the Infinity Internet case. We note that the sum of these six dollar amounts equals $ 95,020.74 (i.e., $4,000 + $8,500 + $1,655 + $422.89 + $4,695 + $75,747.85 = $95,020.74).
$31,673.58 - $31,036.42 = $637.16.
We conclude Judge Meyer did not err. As already discussed, the reporters transcript of the retrial shows that Rutman conceded during the first day of that proceeding that he had recovered on Bennetts behalf the total sum of $93,109.27, and during the second day he told Judge Meyer that the $4,695 item at issue here was "counted in the 93,000." We note that Rutman does not dispute Bennetts argument that Rutman waived this claim during the original trial before Judge Hayes.
2. $75,747.85 recovery in the Infinity fraudulent transfer/bankruptcy matter
Rutman also claims that the evidence does not support Judge Meyers finding that the amount Rutman recovered on behalf of Bennett as a result of the Infinity fraudulent transfer/bankruptcy matter was $75,747.85. We reject this claim.
In a convoluted series of arguments, Rutman first asserts that the Infinity Internet fraudulent transfer action alleged two separate causes of action: one against Infinity Internet for declaratory relief to void the transfer of Irvine Interactives assets that allegedly was carried out to avoid payment of the underlying Irvine judgment and another for damages against Liang and Seow for conspiracy to commit the alleged fraudulent transfer. Rutman then asserts that no damages were sought from Infinity Internet in the Infinity Internet action and no damages were in fact collected from it, and this court should not interpret Infinity Internets agreement to pay the $75,747.85 in bankruptcy in satisfaction of the underlying Irvine judgment as a "recovery."
Rutman next asserts that in Rutman I, this court "made a mistake when it construed the nature of [Rutmans] agreement with [Bennett] to file the [Infinity Internet] fraudulent transfer action." That agreement, Rutman maintains, provided that he would receive as a contingency fee one-third of any "new damages" collected from Liang and Seow as a result of a judgment in Bennetts favor in the Infinity Internet fraudulent transfer case.
It appears Rutman is claiming that Judge Meyer erred by failing to award him, in addition to one-third of the $75,747.85 recovered as a result of the Infinity fraudulent transfer/bankruptcy matter, compensation, either a one-third contingency fee or quantum meruit remuneration for legal services he provided to Bennett in seeking damages against Liang and Seow in the Infinity Internet case, and that he (Rutman) is entitled to such an award under an oral agreement with Bennett that was separate from the original written contingency fee agreement. This claim, and Rutmans related claim that no substantial evidence supports Judge Meyers finding that $75,747.85 was recovered in the Infinity fraudulent transfer/bankruptcy matter, are both unavailing for several reasons.
First, contrary to Rutmans contention, the record shows that although the Infinity Internet complaint that Rutman filed on Bennetts behalf did allege a declaratory relief claim against Infinity Internet, the fourth cause of action for conspiracy, which was the only claim for damages set forth in that pleading, was alleged against "ALL DEFENDANTS," including Infinity Internet. It thus appears that the fourth cause of action for conspiracy was not a claim for "new damages" against Liang and Seow only.
Second, in Rutman I this court addressed Rutmans quantum meruit claim and stated that in the Infinity fraudulent transfer/bankruptcy matter, Rutman was entitled to either a contingency fee under the agreement or a quantum meruit recovery, "but not both." (Italics added.) We also stated that remand was "necessary for the court to determine whether Rutman was entitled to a quantum meruit recovery for his work on the [Infinity] fraudulent transfer/bankruptcy case or whether he was entitled to one-third of the money paid in the bankruptcy case pursuant to the parties[]contingency fee agreement, e.g., as a collection action covered by the original agreement." This court concluded in Rutman I that the parties entered into only one written fee agreement:
"Rutman . . . took actions to collect on the [Irvine] judgment. He convinced Schmallacker to voluntarily pay his $4,000 judgment and he obtained $13,361.42 from Liang through a sale of Liangs assets. Rutman also filed a lawsuit against Infinity Internet[,] Trinh and [Seow] alleging that Irvine Interactives assets had been fraudulently transferred to Infinity [Internet], Trinh and Seow. Prior to the initiation of this lawsuit, Rutman and Bennett had not drawn up a new written attorney fee agreement but had agreed Bennett would pay on the same terms as the prior contingency fee agreement."
(Italics added.)
Furthermore, there is no language in the Rutman I opinion to suggest that this court remanded the matter to the trial court for a determination of whether the parties entered into a second, oral fee agreement that would permit Rutman to collect in addition to one-third of the $75,747.85 recovered in the Infinity fraudulent transfer/bankruptcy matter, an additional one-third of any "new damages" recovered from Liang and Seow in that matter. Bennetts trial counsel accurately argued to Judge Meyer that "[n]owhere in the [Rutman I] decision does it even talk about two agreements. It talks about one agreement or quantum meruit." Rutman I impliedly concluded that the original agreement was the only agreement that Rutman and Bennett entered into in this fee dispute case.
Third, Rutmans claim that in Rutman I another panel of this court "made a mistake when it construed the nature of [Rutmans] agreement with [Bennett] to file the [Infinity Internet] fraudulent transfer action" is inappropriate. The interpretation of the agreement in Rutman I is now law of the case.
Fourth, on remand Judge Meyer found that Bennett and Rutman did not enter into either a new agreement or an oral modification of the original agreement and that the original agreement governed Rutmans fee recovery in the Infinity fraudulent transfer/bankruptcy matter. Specifically, Judge Meyer found as follows when he stated his decision on the record:
"I think that the contingent fee contract is what it is. The Court of Appeal appropriately indicated that the parties didnt modify the contingent fee contract when Mr. Rutman filed the second lawsuit [i.e., Infinity Internet]. And they went forward on the basis that the original contingent fee agreement would control."
Judge Meyer also properly explained to Rutman during the remand hearing that "[t]he Court of Appeal decision [in Rutman I] says quite clearly you and [Bennett] didnt enter into a new agreement." In his written statement of decision, Judge Meyer expressly and properly found that the original agreement "was never modified," and "[t]here is no basis to award fees in addition to the one-third of [Bennetts] recovery as agreed pursuant to the [original agreement]."
Fifth, the foregoing findings by Judge Meyer are supported by substantial evidence. Judge Meyer considered the express language set forth in the original agreement, under which Rutman agreed to provide legal services in connection with the following:
"(a) the anticipated dissolution of [Irvine Interactive] and the collection of all physical assets, monetary compensation and intellectual property rights to which [Bennett] might be entitled as a result of [his] ownership interest in said company;
"(b) [Bennetts defense] in the event [he is] sued by anyone associated with [Irvine Interactive] or companies with whom it has done business;
"(c) [] divesting David Liang of his minority interest in [Irvine Interactive]; and
"(d) bringing suit against Mr. Liang arising from the foregoing." (Italics added.)
In this regard, the foregoing italicized language shows that the original agreement obligated Rutman to provide legal representation for the "collection of all . . . monetary compensation . . . to which [Bennett] might be entitled as a result of [his] ownership interest in [Irvine Interactive]. . . ."
The record shows that during the remand proceeding Judge Meyer also considered the provisions of the agreement governing payments to Rutman for the legal services he agreed to provide:
"[M]y fee for investigating, filing and prosecuting/defending the aforementioned civil lawsuit(s) shall be one third of any recovery, exclusive of costs. This means that, regardless of whether you go to trial or settle, my fee shall be computed based on the total sum recovered." (Italics added.)
Judge Meyer specifically focused on the foregoing italicized term "civil lawsuit(s)," and observed that, "unless I have misconstrued something, I believe that the original contingent fee contract talked in terms of lawsuits rather than in the singular lawsuit." Judge Meyer then stated:
"So[,] reading the contingent fee contract, it would seem that one interpretation is [Rutman] could file ten lawsuits and hed still get a third of what [Bennett] recovers. Unless . . . the contract was modified. And in this case it wasnt modified, at least I cant see that it was . . . . I cant see any evidence that it was modified other than a contested oral modification. . . ."
Judge Meyer considered Rutmans showing in support of his claim that he and Bennett entered into a new oral fee agreement under which Bennett allegedly agreed to pay Rutman an additional one-third fee to collect on the Irvine judgment. Judge Meyer also considered, however, Bennetts showing that he never entered into the alleged oral agreement and found there was no evidence of such a new agreement between Rutman and Bennett "that would provide for [Rutman] to get an additional third or to get quantum meruit in addition to his third." The record thus shows that Judge Meyer implicitly credited Bennetts showing and discredited Rutmans. Judge Meyer also observed that without evidence of such an agreement, "as the Court of Appeal says, [Rutman] is stuck with the agreement that provides for one-third of the recovery . . . and no quantum meruit."
Viewing the evidence in the light most favorable to the respondent (Bennett), giving him the benefit of every reasonable inference, and resolving all evidentiary conflicts in his favor, as we must (In re Marriage of Mix, supra, 14 Cal.3d at p. 614), we conclude that substantial evidence supports Judge Meyers finding that the parties did not enter into the alleged oral fee agreement. Accordingly, we need not address Rutmans ancillary claim that under Business and Professions Code sections 6147, the alleged oral fee agreement was voidable, not void, and was enforceable in this matter because Bennett never declared it to be void.
Business and Professions Code sections 6147, subdivision (a) requires that contingency fee agreements be in writing, and provides: "An attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the attorney and the client, or the clients guardian or representative, to the plaintiff, or to the clients guardian or representative. The contract shall be in writing . . . ." (Italics added.) Subdivision (b) of that section provides: "Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee." (Italics added.)
3. Denial of Rutmans $30,000 quantum meruit claim
Rutman separately claims the evidence does not support Judge Meyers finding that there is no basis to award him a $30,000 quantum meruit fee in addition to the one-third contingency fee awarded under the agreement based on Bennetts $75,747.85 recovery in the Infinity fraudulent transfer/bankruptcy matter. We reject this claim.
The record shows that in the original judgment Judge Hayes awarded Rutman a contingency fee under the agreement plus an additional $30,000 quantum meruit award based on legal services Rutman provided in the Infinity fraudulent transfer/bankruptcy matter in seeking "new damages" against Liang and Seow before his legal services were terminated. The Rutman I decision reversed this portion of the original judgment and (as already discussed) held that Rutman was entitled to either a contingency fee under the agreement of one-third of the money collected in the Infinity fraudulent transfer/bankruptcy matter or a quantum meruit recovery in that matter, but not both. As also discussed, ante, Rutman I remanded this matter to the trial court "to determine whether Rutman was entitled to a quantum meruit recovery for his work on the [Infinity] fraudulent transfer/bankruptcy case or whether he was entitled to one-third of the money paid in the bankruptcy case pursuant to the parties[] [agreement], e.g., as a collection action covered by the original agreement."
On remand, Judge Meyer found that under the agreement, Rutman was entitled to a fee of one-third of the $93,109.27 recovered on Bennetts behalf for his work on both lawsuits (Irvine and Infinity Internet). Judge Meyer also found that there was no basis to award attorney fees in addition to that contingency fee award and that "[i]t is impossible for the [remand court], on the record before it, to award [Rutman] any sums based on an alternate theory of Quantum Meruit recovery."
Substantial evidence supports Judge Meyers finding that Rutman is not entitled to the additional $30,000 quantum meruit award he continues to claim in addition to the contingency fee of one-third of the $93,109.27 recovered in Irvine and the Infinity Internet fraudulent transfer action. As this court explained in Rutman I, "`an attorney employed under a contingen[cy] fee [agreement] and discharged prior to the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of services rendered up to the time of discharge, rather than the full amount of the agreed contingen[cy] fee." (Joseph E. Di Loreto, Inc. v. ONeill (1991) 1 Cal.App.4th 149, 156; Fracasse v. Brent (1972) 6 Cal.3d 784, 792.)
Here, Rutmans quantum meruit claim is based on his assertion that in the Infinity Internet fraudulent transfer action, he was pursuing a "new" cause of action for damages against Liang and Seow only, and Bennett prevented him from obtaining a judgment or settlement by terminating him. As already discussed, however, the record shows that that cause of action was alleged against "ALL DEFENDANTS," including not only Liang and Seow, but also Infinity Internet, Irvine and Trinh. It thus appears that the fourth cause of action for conspiracy was not a claim for "new damages" against Liang and Seow only.
Rutman is referring to the fourth cause of action for conspiracy alleged in the Infinity Internet complaint (discussed, ante) that Rutman filed on Bennetts behalf.
Even if that claim were for "new damages," it is well-established that a quantum meruit or quasi-contractual recovery is an equitable recovery based on the notion that where one renders services to another who benefits thereby, the person performing such services is entitled to receive reasonable compensation for the services even in the absence of an express contract requiring compensation. (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 91, pp. 122-123.)
Here, substantial evidence supports Judge Meyers decision in equity to deny Rutmans quantum meruit claim. Assuming for the purposes of argument that Rutmans quantum meruit claim is based on services he rendered seeking "new damages" against Liang and Seow, the record shows that during the retrial Rutman admitted he did not segregate the hours he spent on that cause of action from the hours he spent on the claim for declaratory relief against Infinity Internet. Rutman also admitted that no money damages were recovered from Seow on behalf of Bennett because Seow declared bankruptcy and the claim against her was discharged in bankruptcy.
The foregoing record shows that Bennett did not benefit from the legal services at issue here and supports Judge Meyers ruling that Rutman is not entitled to a $30,000 quantum meruit award in addition to the one-third contingency fee that Judge Meyer awarded to him in the amount of $31,036.42. These two sums total about $61,000, representing more than 65 percent of the total recovery of $93,109.27. It is undisputed that Bennett was liable for costs in the sum of about $36,000, and thus he would receive none of the recovered funds were he to be held liable to Rutman in quantum meruit. In light of these facts, we conclude that Judge Meyer properly observed that such a result would "border[] on unconscionable."
4. $35,379.74 Restitution Award
Rutman claims the evidence does not support Judge Meyers finding that Bennett is entitled to restitution from Rutman in the amount of $35,379.74. We reject this claim.
On remand, as already noted, Judge Meyer awarded Bennett restitution in the amount of $35,379.74 with interest thereon from the date of entry of the remand judgment. Rutman challenges this restitution award by reasserting his claim (discussed, ante) that Judge Meyer erroneously failed to include as part of the total recovery in this matter the sum of $4,695 recovered as a result of a "seizure" of Liangs assets. He again maintains that this sum should be considered in the calculation of his fee and asserts that "[r]egardless of how [this court] resolves the other issues in this appeal, it must reduce the restitution award by this amount or else it is giving [Bennett] a double recovery.
For reasons already discussed, we have concluded the court did not err with respect to its treatment of the $4,695 sum. Accordingly, we uphold the restitution award.
III.
MATERIAL VARIANCE FROM RUTMAN I DIRECTIONS
Rutman also contends the remand judgment is void because Judge Meyer materially varied from the specific directions set forth in this courts Rutman I opinion. We reject this contention.
Rutman asserts that Judge Meyer "made a number of findings on evidentiary matters and legal issues not within the scope of the [r]emittitur." Specifically, he complains that Judge Meyer (1) found that the original agreement was never modified; (2) found that allowing Bennett to receive none of the recovered funds would be unconscionable; (3) "erred in refusing to allow [Rutman] to elect to recover fees based on quantum meruit for all of the work that [he] performed before representation of [Bennett] was terminated and to prove the value of these efforts."
For reasons already discussed, substantial evidence supports Judge Meyers finding that the original agreement was never modified. To the extent Judge Meyer found that allowing Bennett to receive none of the recovered funds would be unconscionable, we conclude for reasons discussed, ante, that Judge Meyer did not err. We have also concluded that Judge Meyer properly denied Rutmans quantum meruit claim. The issue of whether Rutman was entitled to elect a quantum meruit recovery for all of the legal services he provided on behalf of Bennett was not an issue remanded to the trial court for determination.
IV.
NEW TRIAL
Rutman also contends Judge Meyer should have granted him a new trial in light of the claimed multiple errors. We reject this contention.
Rutman maintains he is entitled to a new trial because Judge Meyer denied his quantum meruit claim. We have concluded Judge Meyer properly denied that claim.
Citing Ehret v. Congoleum Corp. (2001) 87 Cal.App.4th 202 for the proposition that a money judgment modified on appeal bears interest from the date of entry of the original judgment, Rutman asserts he is entitled to a new trial because Judge Meyer failed to award him interest at the legal rate from June 20, 2000, the nunc pro tunc date of entry of the original judgment entered by Judge Hayes. Ehret is distinguishable. Here, the Rutman I decision did not modify the original judgment. As already discussed, it reversed significant portions of that judgment: Judge Hayess awards to Rutman of one-third of a $107,401 settlement offer that Bennett rejected and of the sum of $30,000 in quantum meruit.
Rutman also claims he is entitled to a new trial because Judge Meyer erred by failing to award him additional unspecified costs in the amount of $401.32. In his opening brief, without explanation or citation to any authority, Rutman asserts the remand judgment is "legally erroneous" because Judge Meyer "failed to (re)award the Costs awarded by the Trial Court in the Amount of $401.32." Rutman has failed to meet his burden of showing error with respect to this item.
Rutman also maintains he is entitled to a new trial because Judge Meyer failed to include in the remand judgment a lien in favor of Rutman on any future money collected in satisfaction of the underlying judgment. The record shows Rutman has waived any lien rights to additional monies. Bennett has shown, and Rutman does not contest, that in Bennetts chapter 7 bankruptcy proceeding, Rutman stated to the bankruptcy court that despite a judgment lien, he "disavow[ed] any desire to secure additional funds."
Rutman next contends he is entitled to a new trial because Judge Meyer failed to review the trial record and evidence. The record shows that Judge Meyer did review the trial record and considered the evidence presented. As already discussed, Rutman filed a 40-page brief that Judge Meyer read and considered. At Rutmans request, Judge Meyer took judicial notice of various documents without objection from Bennett.
Last, Rutman contends he is entitled to a new trial on the ground of inadequate damages because he is entitled to a $30,000 quantum meruit recovery. We have already concluded that Judge Meyer properly denied that claim on the ground it was inequitable.
DISPOSITION
The judgment is affirmed. Bennett shall recover his costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J. and McDONALD, J.