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Ernsting v. Gerald N. Shelley11/28/2005
I. Introduction
We dismiss this appeal because the appellant clearly waived his right to appeal on the record in the trial court below. Indeed, he went so far as to immediately satisfy all liability against him pursuant to both a jury verdict for breach of contract and a declaratory relief cross-complaint. And he had good reason to satisfy that liability and end all possibility of appeal: In return for waiving his right to appeal, the appellant obtained de facto immunity from the possibility that the respondent might appeal herself, and ultimately obtain $66,000 more the second time around.
However, some controversies evoke the pronouncement at the end of Shakespeare's Romeo and Juliet concerning plagues and warring houses.
We are indeed unimpressed with the appellant's attempt to appeal the judgment after he had stated, on the record, "we're going to waive the appeal," and gave every indication that all litigation was over. As he himself put it, the idea was for everyone to get on with their "life."
But we are also unimpressed with the respondent's attempt to continue the litigation by seeking a large sum (more than 80 percent of the $66,000 given up by her waiver of appeal rights) in prejudgment interest after what should have been the cessation of all hostilities.
No, that improvident bit of grasping does not undo what was already a clear waiver of appellate rights on both sides. And no, it does not establish an estoppel which in some way can revive appeal rights already waived.
But it does require a different spin for this opinion than would otherwise have been the case. We will therefore take the unusual step, in our appellate cost order, of providing that the appellant shall recover his costs in this appeal, despite the dismissal. It is small thing, of course, but intended to symbolically register our displeasure with the fact that both sides tried to renege on a waiver made in open court. The appellant must lose, but we can balance things out to the degree we can by awarding costs against the respondent.
II. Facts
A. The Underlying Litigation
In October 1994 Charlotte Ernsting hired Gerald N. Shelley to represent her in a sexual harassment suit. The retainer agreement provided that Shelley would retain one-third of any "net recovery." At the time, however, Ernsting was already being compensated for the sexual harassment by way of a workers' compensation claim for job-related stress.
A sexual harassment lawsuit was filed in 1995. At the conclusion of the second trial, Ernsting was awarded compensatory damages, punitive damages and attorney's fees. Pacific Telesis appealed. This court, in an opinion dated April 27, 2000, substantially altered all three monetary awards:
-- the punitive damage award was reversed outright ;
-- the economic and non-economic damage award of $682,716 was affirmed, but the case was remanded for the trial court to deduct the value of Ernsting's worker's compensation benefits from the award; and
-- the $906,420.82 attorney's fee award was reversed, but remanded for recalculation on the basis of how many hours were actually spent working on the case, plus other factors as articulated in Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 958.
On remand, the trial court reduced the compensatory damage award to zero based on its finding that the value of the workers' compensation benefits which Ernsting had already received, plus the present value of her future benefits, would be more than the compensatory damage award. As for the other issue remanded, attorn
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