Filed 9/2/15 Philips v. Smurro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

WAYNE PHILIPS,

 Plaintiff and Respondent,

v.

THOMAS E. SMURRO,

 Defendant and Appellant.

 G049791

 (Super. Ct. No. 30-2012-00558438)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Andrew 

P. Banks, Judge. Affirmed.

Thomas E. Smurro, in pro. per., for Defendant and Appellant.

Wayne Philips, in pro. per., for Plaintiff and Respondent. 

* * *
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This case concerns a dispute over attorney fees. Plaintiff Wayne Philips 

sued defendant Thomas E. Smurro to recover his fee for representing defendant in a prior 

lawsuit. The trial court awarded plaintiff over $58,000 in damages, prejudgment interest, 

and costs. Defendant contends the award is excessive because it included fees 

interpleaded by the opposing party in the prior action, plus prejudgment interest on those 

funds. We conclude his arguments lack merit and affirm the judgment. 

FACTS AND PROCEDURAL BACKGROUND

Defendant, an attorney, retained plaintiff to represent him in a lawsuit

against Cantamar Community Association (Cantamar), defendant’s homeowners 

association. The retainer agreement provided plaintiff would be entitled to “ninety-five 

percent (95%)” of any court-ordered attorney fee award, plus costs, and granted plaintiff 

“a lien on . . . all claims.” 

Defendant prevailed at trial in the Cantamar action and the court awarded 

him a gross attorney fee award of $49,000. However, the court reduced the amount 

Cantamar owed to defendant by $12,800, citing Cantamar’s success in striking 

defendant’s cross-complaint. Cantamar was directed to deposit the balance, i.e., $36,200,

with the court and it eventually did so. 

Plaintiff requested defendant pay him 95 percent of the $49,000 gross 

attorney fee award, plus unreimbursed costs. Defendant failed to do so. After defendant 

also failed to respond to a proposal for arbitration of the fee dispute, plaintiff filed this 

action. While the case was pending, plaintiff sought release of the $36,200 deposited by

Cantamar. Defendant opposed the motion and the court denied plaintiff’s request. 

After a four-day trial, the court ruled in plaintiff’s favor. It also authorized 

the release of Cantamar’s $36,200 deposit to plaintiff. Defendant then agreed to stipulate 

to the release of these funds and also sent plaintiff a check for $11,072.88 with a letter 
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authorizing him “to negotiate” it “immediately.” After the trial court denied defendant’s 

motion for a new trial, he sent plaintiff a second check for $9,504.17 with authorization

“to negotiate [it] immediately.” The court’s final judgment awarded plaintiff $58,210.88, 

consisting of $47,272.88 in attorney fees, $9,583.51 in prejudgment interest, and 

$1,354.49 in costs. 

DISCUSSION

1. Defendant’s Waiver of the Right to Appeal

As noted, before filing this appeal defendant stipulated to disbursement of 

the $36,200 Cantamar deposited in the prior action and sent plaintiff two checks totaling 

$20,577.05. The first check approximated the difference between 95 percent of the gross 

attorney fee awarded in the Cantamar action and the amount of Cantamar’s deposit. The

second check totaled all but $80 of the prejudgment interest contained in the amended 

judgment. Nothing in the record suggests defendant made these payments under a threat 

of execution or other coercion. At our request, the parties briefed the question of whether 

defendant’s actions constituted a waiver of his right to appeal from the judgment. We 

now conclude the answer to this question is no. 

While cases hold “a party who voluntarily complies with the terms of a 

judgment impliedly waives the right to appeal” (A.L.L. Roofing & Bldg. Materials Corp. 

v. Community Bank (1986) 182 Cal.App.3d 356, 359), the “deprivation of the right to 

appeal ensues only when it is shown that the payment of the judgment was by way of 

compromise or with an agreement not to take or prosecute an appeal.” (Estate of Merrill

(1946) 29 Cal.2d 520, 524; Miller v. Cabral (1970) 13 Cal.App.3d 503, 506.) Here, the 

record does not contain any indication defendant made the foregoing payments “by way 

of compromise or pursuant to an agreement not to prosecute an appeal.” (Reitano v. 

Yankwich (1951) 38 Cal.2d 1, 4.) Apparently, he made the foregoing payments to avoid 
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incurring additional interest on the judgment. The record also does not indicate 

defendant paid or offered to pay the outstanding court costs in this action.

Plaintiff’s reliance on our decision in Satchmed Plaza Owners Assn. v. 

UWMC Hospital Corp. (2008) 167 Cal.App.4th 1034 is unavailing. That case concerned 

an attempted appeal by a party that had accepted the benefits of the trial court’s 

judgment. In this case, defendant was not benefited by the judgment. Under the 

circumstances, we conclude he can maintain this appeal. 

2. The Validity of the Judgment

Nonetheless, on the merits, the appeal is fruitless. In line with the general 

principles governing appellate review, “‘[i]t is the burden of the party challenging the fee 

award on appeal to provide an adequate record to assess error’” (Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1140-1141), and “‘“[a]ll intendments and presumptions are 

indulged to support [the judgment] on matters as to which the record is silent”’” (id. at 

p. 1140). Defendant’s appendix consists of only the pleadings, new trial motion, some 

exhibits, and the judgment. Thus, it is the equivalent of a judgment roll. (Kopf v. Milam

(1963) 60 Cal.2d 600, 601; Williams v. Inglewood Board of Realtors, Inc. (1963) 219 

Cal.App.2d 479, 482.) In an appeal based on the judgment roll, we “‘conclusively 

presume that the evidence is ample to sustain the findings’” (National Secretarial 

Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 522), and “are confined to a 

determination whether the complaint states a cause of action, whether the findings are 

within the issues, and whether the judgment is supported by the findings” (Ducray v. 

Ducray (1967) 257 Cal.App.2d 480, 483). 

Defendant does not challenge the sufficiency of the pleadings. Plaintiff 

alleged in his complaint that he was entitled to recover a fee constituting 95 percent of the 

gross fee awarded to defendant in the Cantamar action, and the judgment awarded that 

relief. Defendant did not request a statement of decision and thus we “presume[] the trial 
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court made all necessary findings supported by substantial evidence.” (Acquire II, Ltd. v. 

Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) 

Rather, defendant argues the judgment is legally erroneous because 

plaintiff’s attorney’s “lien gave him constructive possession of the $36,200” and thus he

should have been awarded only the difference between the amount of the deposit and 95 

percent of the original $49,000 fee award rendered in the Cantamar action. For the same 

reason, defendant claims the award of prejudgment interest is also excessive. 

Plaintiff concededly had an enforceable attorney’s lien. (Cetenko v. United 

California Bank (1982) 30 Cal.3d 528, 531.) But he was not a party to the Cantamar 

action and needed to file an “independent action . . . to establish the amount of the lien 

and to enforce it” (Hansen v. Jacobsen (1986) 186 Cal.App.3d 350, 356). In this action, 

defendant disagreed with plaintiff’s request for a recovery based on the gross attorney fee 

awarded in the Cantamar action, arguing plaintiff was only entitled to 95 percent of the 

net fee award, i.e., $36,200. Because of this dispute, the court rejected plaintiff’s pretrial 

motion that it release the funds deposited by Cantamar. Thus, defendant’s assertion 

plaintiff “always had a right to collect the $36,200 held by the court” lacks merit and the 

trial court properly included that amount in the judgment awarded to plaintiff. 

Defendant’s reliance on Hunt v. Hackett (1973) 36 Cal.App.3d 134 for the 

proposition that a court cannot enter “a judgment for more than the unpaid balance owed 

to the judgment creditor after applying any amounts that had already been paid” is 

unavailing. There plaintiffs suing several parties alleged to be jointly liable for their loss,

settled with some of the defendants, receiving payment of a portion of the damages. The 

court subsequently entered judgment for the entire amount sought by plaintiffs without 

deducting the sum previously paid to them. 

For the same reasons, the trial court did not err in awarding prejudgment 

interest on the $36,200 deposit. The retainer agreement entitled plaintiff to receive 95 

percent of any court-ordered attorney fee awarded to defendant in the Cantamar action. 
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In the Cantamar action the court awarded defendant a gross fee of $49,000. The amount 

of plaintiff’s fee, 95 percent of the $49,000 award, was readily calculable. (Civ. Code, 

§ 3287, subd. (a)) Defendant’s failure to pay it upon demand entitled plaintiff to receive 

prejudgment interest on the entire judgment, including the amount Cantamar deposited 

with the court. Further, since the issue here is plaintiff’s entitlement to prejudgment 

interest in the current lawsuit rather than the Cantamar litigation, defendant’s reliance on 

Code of Civil Procedure section 685.030 and cases involving a party that deposited funds 

in favor of another party to the same action is misplaced. 

We conclude the trial court’s judgment properly included the $36,200 

deposited by Cantamar and prejudgment interest on that amount. 

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal. 

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.