Metropolitan News-Enterprise


Thursday, July 30, 2015


Page 3


C.A. Says Judge, on Remand, Can’t Modify a Judgment It Affirmed


By a MetNews Staff Writer


A perplexed Court of Appeal yesterday reversed a judgment which countermanded a previous decision of the appeals panel.

Writing for Div. Six, Presiding Justice Arthur Gilbert said, in an unpublished opinion:

“This is a dispute between two attorneys over the division of fees. In the first appeal we reversed the judgment in part and affirmed in all other respects….On remand, one of the attorneys convinced the trial court that the portion of the judgment we affirmed should be modified to change a judgment against the attorney to a judgment against the attorney’s former client. The court so modified the judgment even though the former client was not a party to the cause of action that gave rise to the judgment.

“Obviously, we reverse. The trial court lacks jurisdiction to modify a judgment we affirmed.”

The parties were sole practitioners Chad Biggins of Los Angeles and Michael K. Newlee of San Diego. They had represented Jeffrey L. Madison in an action, pursuant to a contingency fee agreement, and after the case was settled, the lawyers disagreed over how the fees were to be split.

The client received his 60 percent. Part of the attorneys’ 40 percent—amounting to $310,000—was disbursed, and how the balance was to be divided was litigated.

Earlier Decision

In Biggins I, Div. Six reversed a $100,000 award to Biggins, and held that Biggins was liable to Newlee in the amount of $77,500. Upon remand, Ventura Superior Court Judge Henry J. Walsh amended the judgment so that now, it was Madison, not Biggins, who was to pay Newlee.

Gilbert wrote:

“All the trial court was required to do on remand was remove the judgment in favor of Biggins against Newlee and enter judgment for Newlee against Biggins in the amount of $77,500.

“An unqualified affirmance sustains the judgment and ends the litigation….The trial court cannot modify the judgment, and further proceedings are improper….A trial court’s modification of a judgment after affirmance is void….

“We have no quarrel if the trial court wishes to state the amount of the judgment as $52,500 instead of $77,500 to take into account the $25,000 Newlee acknowledges receiving prior to trial. The change is merely formal. But we cannot imagine a more substantive change than substituting one judgment debtor for another. The change constitutes an abrogation of the original judgment and entry of a new and different judgment. That is inappropriate when the original judgment was affirmed. The inappropriateness becomes even more pronounced when the change results in a judgment being entered against a person who was not a party to the cause of action.”

Law of the Case

Gilbert also pointed out that in the previous decision, the court expressly determined that it was Biggins, not Madison, who was liable to Newlee.

“The law of the case applies even where it subsequently appears the stated principle or rule is wrong,” the jurist said, adding:

“In any event, we were not wrong.”

The case is Biggins v. Newlee, B254897.

Filomena E. Meyer of Hinshaw & Culberson LLP was Newlee’s attorney and Biggins represented himself.


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