Opinion
B157911.
11-6-2003
LEE VANDEVORT, Plaintiff and Appellant, v. ROBERT E. MCKEE, INC., et al. Defendants and Respondents.
Lee Vandevort, in pro. per., Plaintiffs and Appellants. Cox, Castle & Nicholson and Robert G. Campbell for Defendants and Respondents.
Lee Vandevort (Vandevort) appeals a postjudgment order awarding attorney fees in favor of respondents Robert E. McKee, Inc. (McKee) and Fidelity & Deposit Company of Maryland (Fidelity). Having reviewed Vandevorts brief, we conclude that he failed to demonstrate error. We affirm.
FACTUAL AND PROCEDURAL HISTORY
McKee was the prime contractor on a public works project known as the C.E. Perkins Building. He hired Transpac Fiberoptics & Telecommunications, Inc. (Transpac) as the subcontractor for the electrical work.
The subcontract contained an attorney fees provision that provided, inter alia: "In the event the parties become involved in litigation or arbitration with each other arising out of this Agreement or other performance thereof in which the services of an attorney or other expert are reasonably required, the prevailing party shall be fully compensated for the cost of its participation in such proceedings, including the cost incurred for attorneys fees and experts fees." Additionally, the subcontract contained a clause requiring Transpac to obtain the written consent of McKee before assigning payments to a third party.
Below, Vandevort maintained that he was the assignee of Transpacs right to receive certain payments. To collect, Vandevort, doing business as Engineering Consultants International (ECI) sued McKee and Fidelity, the holder of the payment bond. Vandevorts complaint alleged that he was entitled to recover attorney fees.
After a lengthy bench trial, the trial court issued a statement of decision in which it concluded that Vandevort lacked standing to sue. While the evidence showed that ECI was Transpacs assignee, Vandevort failed to establish that he owned ECI or was doing business as ECI. As a curious side note, the trial court indicated that Vandevort did not take the stand, and also that he failed to authenticate any of the documents that he offered in support of his case.
McKee and Fidelity moved for attorney fees based on the attorney fees provision in the subcontract with Transpac. The trial court granted the motion and awarded $693,905.70.
This timely appeal followed.
CONTENTIONS
Verbatim, Vandevort contends:
"1. The trial court erred in its determination that [McKee and Fidelity] are entitled to an award of attorneys fees and costs pursuant to Civil Code section 1717 [section 1717].
"2. The trial court erred in not allowing any exhibits submitted by [Vandevort] to be admitted as evidence.
"3. The trial court therefore erred and severally [sic] prejudiced [Vandevort] in not reviewing the entire record.
"4. The trial court erred in drafting a statement of decision inconsistent with the facts and previous statements on the record of the court."
DISCUSSION
I. McKees attorney fees.
A. The law.
Under the authority of Civil Code section 1717, subdivision (a), in any action on a contract that provides for attorney fees and costs incurred to enforce the contract, the "party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs."
In certain circumstances, Civil Code section 1717, subdivision (a) can be applied to a nonsignatory to a contract. Pertinent to this case, "`"[w]here a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorney fees only if the nonsignatory plaintiff would have been entitled to its fees if the plaintiff had prevailed." [Citation.]" (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 608 (California Wholesale).)
B. Vandevort is subject to the attorney fees clause.
This case dovetails perfectly with California Wholesale. Here, as in California Wholesale, we have an appellant who attempted and failed to enforce a subcontract as an assignee. Thusly, California Wholesale applied the test to a similar fact pattern: "Had CalPly prevailed on its cause of action as the assignee of Johnwalls rights under the Wilson/Johnwall subcontract, Wilson would have been liable to CalPly for attorney fees pursuant to the subcontract. Consequently, because Wilson would have been liable for attorney fees pursuant to the attorney fee provision had CalPly prevailed, Wilson is entitled to recover attorney fees pursuant to the subcontract now that it has prevailed. [Citations.]" (California Wholesale, supra, 96 Cal.App.4th at p. 608, fn. omitted.) If Vandevort had proven that he had rights under an enforceable assignment and had then proven that McKee breached the subcontract with Transpac, he would have been entitled to attorney fees.
Laboring under a misapprehension of the case law, Vandevort posits that he could not have recovered attorney fees if he had prevailed. To substantiate his position, he resolutely but mistakenly relies on the following cases: Pacific Preferred Properties, Inc. v. Moss (1999) 71 Cal.App.4th 1456 (Pacific Preferred), Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541 (Super 7), Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375 (Real Property), and Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48 (Mayer).
Pacific Preferred and Super 7 both involved real estate brokers. In Pacific Preferred, a broker and successor broker sought attorney fees against a seller. They were permitted to recover because the real estate purchase contract, specifically the attorney fees clause, referred to the broker. (Pacific Preferred, supra, 71 Cal.App.4th at pp. 1458-1460, 1462-1463.) In contrast, the broker in Super 7 was not permitted to recover his attorney fees. The real estate purchase contract was in two parts — the buy-sell portion and the broker portion — and the broker was not a party to the buy-sell portion, which was where the attorney fees clause was located. (Super 7, supra, 16 Cal.App.4th at pp. 544-548.) Neither case involved a plaintiff attempting to enforce a contract through an assignment of rights. Being wholly inapposite, Pacific Preferred and Super 7 do not provide Vandevort with any ammunition with which he can shoot down the trial courts ruling.
Real Property is similarly unavailing. In Real Property, a city entered into a lease with a developer to construct a parking structure and a movie theater. It was understood that the developer would operate the movie theater. When the city redefined the project to exclude the movie theater, the developer sued on a third party beneficiary theory. The city prevailed, but it was denied attorney fees. The appellate court reversed on the grounds that the city was entitled to recover because the developer could have recovered if it had prevailed. According to Real Property: "Where there is a sufficient nexus between the lessor and sublessee, a nonsignatory sublessee is entitled to enforce an attorney fee provision in the lease as a third party beneficiary against a signatory landlord." (Real Property, supra, 25 Cal.App.4th at p. 383.) Vandevort latches on to the nexus language. He argues that because he lacked standing to sue, there was no nexus and he could never have enforced the attorney fees provision. We find this statement quizzical. To begin, he did not sue on a third party beneficiary theory and he is not a sublessee suing a signatory landlord. Therefore, Real Property is not analogous. Regardless, the trump card is that if McKee had approved an assignment to Vandevort, then he could have prevailed and obtained attorney fees. Whether there was a nexus is not part of the equation.
Last, Mayer did not broach any questions regarding Civil Code section 1717 and application of the test set forth in California Wholesale. In Mayer, a partnership assigned its rights in a construction defect lawsuit and all successor and replacement actions to the individual partners. Those partners appointed a third party entity as their attorney-in-fact and gave it the authority to make all decisions in connection with all further litigation. The attorney-in-fact settled. One of the partners subsequently sued for latent construction defects and lost. The developer sought attorney fees, but its bid was denied. The partner appealed from the judgment, and the developer cross-appealed the denial of attorney fees. (Mayer, supra, 98 Cal.App.4th at pp. 56-57.) The Mayer court decided against the partner, holding that he lacked standing. It also decided against the developer. According to the Mayer court, the developer could not recover because the partners action did not qualify as a successor or replacement action. (Id. at pp. 57-59, 62-64.) Mayer is inconsequential to our analysis.
Tying up the loose ends of Vandevorts disjointed briefs, we note the following: Vandevort argues in his reply brief that he would not have been entitled to attorney fees even if he had prevailed because McKee and Transpac did not intend to include him in the attorney fees clause. This is an irrelevancy. The contract contemplated assignments through McKees consent. If McKee had consented to an assignment to Vandevort, then we would conclude that McKee and Vandevort had mutually assented to be bound by the attorney fees clause. Next, by contorting California Wholesale, Vandevort avers that it is distinguishable because the parties in that case, in contrast to McKee and Transpac, intended to include third parties within the scope of its attorney fees clause. Frankly, the logic of this argument is too opaque for us to penetrate. We return to our bedrock: any assignee would stand in Transpacs shoes and be bound by the attorney fees clause. Finally, Vandevort complains that his lack of standing forecloses the attorney fees award. But, fatally, he did not cite any authority for this proposition, so we deem it waived. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 ["[E]very brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citation.] [¶] It is the duty of appellants counsel, not of the courts, `by argument and the citation of authorities to show that the claimed error exists. [Citation.]"].)
We need not reach Vandevorts objections to McKees alternative theories for recovering attorney fees.
II. The other contentions.
Vandevort has orphaned his second, third, and fourth contentions. As a result, they have no home in this opinion. It is axiomatic that "[i]t is not our responsibility to develop an appellants argument." (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) The same holds true for Vandevorts appeal of the award in favor of Fidelity. Because Vandevorts brief does not attack Fidelitys award separately from McKees, it fails.
DISPOSITION
The order is affirmed. McKee and Fidelity shall recover their costs on appeal.
We concur: NOTT, Acting P. J. and DOI TODD, J.