Friday, May 19, 2017
C.A. Denies Fees to Lawyer Who Prevailed In Suit Over Defects in His Home
By a MetNews Staff Writer
A lawyer who prevailed in litigation regarding defects in the construction of his own home was not entitled to an attorney fee award, even though his ownership interest was held through a trust and he was not a named party in the suit, the Third District Court of Appeal has ruled.
The panel upheld Nevada Superior Court Judge Robert L. Tamietti’s ruling that Michael W. Quade of Quade & Associates cannot be awarded fees for his work in the lawsuit, in which he represented his wife, Ann E. Gilloti, individually and as trustee for the Ann E. Gilotti and Michael W. Quade Trust. The court did, however, uphold an award of $165,000 for work done by other attorneys in Quade’s firm.
The lawsuit concerned a number of defects in the vacation home that Gilotti and Quade had built in Truckee. At trial, the builder/seller of the home—which failed to present a defense, and whose principal soon filed for bankruptcy—was found liable under the Right to Repair Act.
The plaintiff was awarded more than $440,000 in damages against the builder, Knotty Bear Construction, Inc.
The general contractor was found liable on some, but not all, of the plaintiffs’ claims. A grading subcontractor was found not negligent in any respect.
Quade sought nearly $870,000 in fees for himself and his firm against Knotty Bear. In denying fees for work done by Quade personally, the trial judge ruled that, in addition to being Gilotti’s lawyer and husband, he had a personal pecuniary interest as cotrustor of the trust, noting that he had repeatedly referred to himself and his wife as owners of the home during trial.
The trial judge was correct, Justice Harry Hull wrote for the Court of Appeal, in an opinion filed April 2 and certified yesterday for publication.
“Indeed, Quade testified at trial and gave his opinion ‘as a homeowner’ as to how the tree damage affected the value of the property,” Hull wrote. “He tried to add his opinion as a lawyer with experience in construction defect litigation, but the trial court stated a foundation would have to be laid for such testimony, whereas a statute allows a homeowner to opine on value of his property.”
Quade, answering a question from his associate, then gave his opinion as to the diminution in value as a result of two trees being damaged and having to be removed.
Hull also pointed out that Quade agreed to jury instructions referring to “plaintiffs.” He concluded the case was indistinguishable from Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, in which the court held that an attorney could not obtain a fee award for personally representing himself and his wife in home defects litigation.
Rejecting the theory that the attorney/husband could claim fees for work done on behalf of his spouse, the court declared that their interests were indivisible, and that he could cite no work done on his wife’s behalf that did not also benefit him.
The case is Gilloti v. Stewart, C075611.
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