Filed 3/2/16 Haslerig v. Dyson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FARRIS HASLERIG et al.,

Plaintiffs and Appellants,

v.

PHILIP H. DYSON,

Defendant and Respondent.

 D067387

 (Super. Ct. No. 37-2012-00088478-

 CU-PN-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Randa Trapp, Judge. Affirmed.

Law Offices of Jerome J. Schiefelbein, Jerome J. Schiefelbein; Law Offices of 

James E. Swingley and James E. Swingley for Plaintiffs and Appellants.

Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit and Matthew C. Smith for 

Defendant and Respondent.
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I.

INTRODUCTION

Appellants Farris Haslerig, Tammy Haslerig, Stephanie Haslerig, Kyanna 

Haslerig, and Kaileigh Haslerig (jointly "appellants") appeal from a postjudgment order 

awarding defendant Phillip H. Dyson $340,000 in attorney fees. Appellants argue that 

Dyson is not entitled to attorney fees because their action against him was based in tort, 

not contract, and, according to appellants, none of the agreements that created an 

attorney-client relationship between Dyson and appellants contained an attorney fee 

clause that covers the claims in this action. Appellants argue, in the alternative, that fees 

and costs should have been apportioned between Dyson and a codefendant who settled 

with appellants prior to trial.

We affirm the order of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants are descendants of George Haslerig, who won $12 million in the 

California State Lottery in 1991. After George's death in 2003, appellants had difficulty 

obtaining information about their rights in George's estate from George's son, Garland, 

who controlled all of the trusts and the limited partnership that George created as part of 

his estate.

In 2006, Appellants hired Dyson to pursue their legal interests with respect to 

George's estate, originally entering into an hourly fee agreement with him. After a 

number of months, appellants terminated the hourly fee agreement and the parties entered 
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into a contingency fee agreement pursuant to which Dyson would receive 40 percent of 

whatever appellants might recover with respect to their interest in George's estate.

With Dyson as counsel, appellants filed suit against Garland and the limited 

partnership. The litigation ultimately resulted in Garland's removal as trustee. At that 

point, appellants entered into a negotiated settlement of the underlying litigation against 

Garland and the limited partnership. The negotiated settlement (Settlement Agreement) 

provided appellants with more than half of the property that was in dispute, including real 

property and cash payouts. The Settlement Agreement contains an attorney fee 

provision.

Pursuant to Dyson's fee agreement with appellants, Dyson received 40 percent of 

the settlement that appellants obtained in the underlying action, including interests in real 

property and liquid assets. Dyson and appellants agreed to form a new entity, called 

Perig Properties, LLC (Perig), to hold the real property that was obtained through the 

settlement with Garland. The parties' rights and responsibility as members of Perig were 

set forth in the Perig Operating Agreement (Operating Agreement), which appellants and 

Dyson signed. The Operating Agreement contains an attorney fee provision.1

 

1 The attorney fee clause in the Operating Agreement is set forth in an arbitration 

provision as follows:

"Any action to enforce or interpret this Agreement or to resolve 

disputes between the Members or by or against any Member shall be 

settled by arbitration in accordance with the rules of the American 

Arbitration Association. Arbitration shall be the exclusive dispute 

resolution process in the State of California, but arbitration shall be a 

nonexclusive process elsewhere. Any party may commence 

arbitration by sending a written demand for arbitration to the other 
4

In 2012, appellants voted to remove Dyson as manager of Perig and filed this 

action against Dyson. By amended complaint, appellants alleged eight claims against 

Dyson, as follows: breach of fiduciary duty, negligence, fraudulent concealment, fraud, 

conversion, unjust enrichment, disgorgement of fees, and "action for accounting." 

(Formatting omitted.) The operative complaint alleged that the "fee agreements under 

which the said [D]efendants were paid were void and unenforceable as a matter of law 

due to [the Defendants'] repeated failures to make mandatory disclosures or secure 

written consents to conflicts of interest . . . ." Appellants alleged in their complaint that 

they were entitled to "reasonable and necessary attorney's fees as provided for in the 

agreement between the parties."

The case proceeded to trial before a jury in 2014. The jury returned a verdict in 

favor of Dyson on all of appellants' claims. The trial court entered judgment on the 

verdict on May 7, 2014.2

Dyson filed a "Memorandum of Costs" at the end of May 2014, and in early June, 

he filed a "Notice of Motion and Motion for Attorneys' Fees and Costs" with supporting 

documents. Appellants opposed Dyson's motion for attorney fees and costs.

 

parties. Such demand shall set forth the nature of the matter to be 

resolved by arbitration. . . . The prevailing party shall be entitled to 

reimbursement of attorney fees, costs, and expenses incurred in 

connection with the arbitration."

2 The trial court's judgment was affirmed by this court on September 10, 2015, in 

Haslerig v. Dyson, case No. D066315.
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Appellants filed a motion to tax costs, which Dyson opposed.3

The trial court entered an order granting Dyson's motion for attorney 

fees in the amount of $340,000, stating:

"Defendant is entitled to reasonable attorney fees pursuant to CCP 

§ 1021 and the Operating Agreement. (Lerner v. Ward (1993) 13 

[Cal.App.4th] 155, 159-160[.]) The court finds the amount of 

$340,000 is reasonable in this case due to some excessive and/or 

redundant time spent on tasks."4

The court also granted in part and denied in part appellants' motion to 

tax costs.5

Appellants filed a timely notice of appeal.

III.

DISCUSSION

A. The trial court did not err in concluding that there is a legal basis for

awarding attorney fees

Appellants contend that the trial court erred in granting Dyson's motion for 

attorney fees.

 

3 Appellants' motion is not included in the Appellants' Appendix. However, we 

infer that a motion was filed because Dyson's opposition to such a motion is included in 

the Appellants' Appendix.

4 Dyson had sought $450,216.00 in attorney fees.

5 The court granted appellants' motion to tax costs with respect to $566.15 for 

service of process fees and $1,974.30 in "other costs for delivery charges," but denied the 

motion with respect to appellants' request to apportion costs between Dyson and 

codefendant Amy Morketter, who had apparently settled with appellants prior to trial, and 

as to the remainder of the costs for which Dyson sought reimbursement in his 

Memorandum of Costs.
6

Except as provided for by statute, compensation for attorney fees is left to the 

agreement of the parties. (Code Civ. Proc., § 1021.)6

The trial court has broad discretion to determine the amount of a reasonable fee, 

and the award of such fees is governed by equitable principles. (PLCM Group, Inc. v. 

Drexler (2000) 22 Cal.4th 1084, 1094-1095.)

"On review of an award of attorney fees after trial, the normal standard of review 

is abuse of discretion. However, de novo review of such a trial court order is warranted 

where the determination of whether the criteria for an award of attorney fees and costs in 

this context have been satisfied amounts to statutory construction and a question of law. 

[Citations.] [¶] Stated another way, to determine whether an award of attorney fees is 

warranted under a contractual attorney fees provision, the reviewing court will examine 

the applicable statutes and provisions of the contract. Where extrinsic evidence has not 

been offered to interpret the [contract], and the facts are not in dispute, such review is 

conducted de novo. [Citation.] Thus, it is a discretionary trial court decision on the 

propriety or amount of statutory attorney fees to be awarded, but a determination of the 

legal basis for an attorney fee award is a question of law to be reviewed de novo." 

(Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)

The trial court determined that an attorney fee award in favor of Dyson was 

appropriate pursuant to the parties' Operating Agreement. Our review of this contract 

 

6 Code of Civil Procedure section 1021 provides: "Except as attorney's fees are 

specifically provided for by statute, the measure and mode of compensation of attorneys 

and counselors at law is left to the agreement, express or implied, of the parties; but 

parties to actions or proceedings are entitled to their costs, as hereinafter provided."
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establishes that it contemplates an award of attorney fees in a situation such as the one 

presented in this case, as the trial court concluded.

The Operating Agreement, signed by the parties to this litigation, contains the 

following relevant language:

"Any action to enforce or interpret this Agreement or to resolve 

disputes between the Members or by or against any Member shall be 

settled by arbitration in accordance with the rules of the American 

Arbitration Association. . . . The prevailing party shall be entitled to 

reimbursement of attorney fees, costs, and expenses incurred . . . ." 

(Italics added.)

Although appellants chose to initiate this action in a court of law, rather than in an 

arbitral forum, and Dyson did not seek to compel arbitration, the provision in the parties'

Operating Agreement clearly states that it is intended to apply to any action in which the 

members of Perig are attempting to resolve a dispute between them. By its terms, this 

provision's coverage is not limited to disputes over the enforcement or meaning of the 

contract itself. The provision includes an attorney fee provision entitling the prevailing 

party in any action to reimbursement for attorney fees. This case is an action to resolve a 

dispute between Dyson and appellants—i.e., it is a dispute between "the Members" of 

Perig.

We therefore conclude that the attorney fee provision in the Operating Agreement 

authorizes the trial court to award Dyson, the prevailing party, his attorney fees. The trial 

court did not err in entering such an award.
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B. Appellants have not demonstrated error with respect to the court's declining to 

apportion fees between defendants Dyson and Morketter

Appellants also contend that the trial court erred in declining to apportion the 

attorney fees requested by Dyson between defendant Amy Morketter—who apparently 

settled with appellants before trial—and Dyson. Dyson argues that appellants failed to 

raise this issue in the trial court, that they have relied on information and documents that 

they failed to include in the record on appeal, and that they are wrong in asserting that the 

trial court abused its discretion.

First, we note that appellants refer to their motion to tax costs, as well as the 

settlement agreement between Morketter and appellants, in support of their argument on 

appeal that they were entitled to have the trial court apportion the attorney fees between 

Morketter and Dyson. However, neither of these documents is included in the 

Appellants' Appendix filed in lieu of a clerk's transcript. Appellants included only 

Dyson's opposition to their motion to tax costs. In the absence of appellants' motion, we 

have no ability to determine whether appellants requested apportionment of statutory 

costs only, or whether appellants also requested that the court apportion attorney fees.7 If 

appellants requested only the apportionment of statutory costs, then Dyson is correct in 

his assertion on appeal that appellants have forfeited this contention because they failed 

to present the issue to the trial court and provide the trial court with an opportunity to 

decide the issue. (See Mepco Services, Inc. v. Saddleback Valley Unified School Dist.

 

7 Dyson's opposition to the motion addresses only the question of apportionment of 

statutory costs, suggesting that no similar request was made with respect to attorney fees.
9

(2010) 189 Cal.App.4th 1027, 1049, fn.29 [failure to present apportionment argument in 

trial court resulted in forfeiture of claim on appeal]; see also Premier Medical 

Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 

550, 564 ["General arguments that [attorney] fees claimed are excessive, duplicative, or 

unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the 

claim on appeal"].)

Given the inadequacy of the record, we must presume that the trial court's order, 

which addresses only the apportionment of statutory costs, is correct, and that it 

addressed the sole apportionment question presented by appellants' motion—i.e., whether 

apportionment of statutory costs between Dyson and Morketter would be appropriate. 

There is no indication in the record before us that appellants requested that the court 

apportion attorney fees. As a result, we must conclude that this issue has been forfeited.

However, even if we were to address this issue on its merits, we would not be able 

to ascertain any abuse of discretion by the trial court with respect to apportionment of 

attorney fees. The trial court denied appellants' motion to tax costs to the extent that 

appellants sought to apportion costs between Dyson and Morketter, since "Morketter was 

a nominal defendant who settled before trial," and "[it] does not appear that costs were 

incurred separately on her behalf or that her inclusion increased the amount of costs." To 

the extent a record exists that permits the court to consider this question, the record bears 

out the trial court's determination that Morketter was a nominal defendant whose role in 

the litigation was minimal, at best. Morketter was an associate attorney who worked for 

Dyson for a salary; she was not his law partner or a shareholder in a corporation with 
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him. Morketter did not enter into any of the fee agreements at issue in this case, nor did 

she enter into any other agreements with appellants. Morketter also was not a party to the 

Settlement Agreement between appellants and Garland and was not a member of Perig. 

There is no indication that appellants sought any relief from Morketter independent of 

their claims against Dyson. Given these circumstances, even if we could determine that 

appellants had, in fact, requested that the court apportion attorney fees between Dyson 

and Morketter, it is clear that the trial court acted well within its discretion in declining to 

apportion statutory costs, and, therefore, the trial court would have acted well within its 

discretion in declining to apportion attorney fees, as well.

IV.

DISPOSITION

The order awarding Dyson attorney fees is affirmed. Respondent is entitled to 

costs on appeal.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

O'ROURKE, J.