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Baleme v. Comeaux11/15/2004
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Daren Baleme appeals from the postjudgment order granting defendants David and Natasha Comeaux and Comeaux Construction (collectively Comeauxes) $15,000 in attorney fees as the prevailing parties in an action on a promissory note and deed of trust executed by Baleme and his wife and payable to David or Natasha Comeaux.
Baleme sought damages on various causes of action including breach of contract and failure to timely surrender the note and reconvey the deed of trust. The crux of the suit was based upon Baleme's assertions the Comeauxes delayed surrendering the promissory note and reconveying the deed of trust after the note had been paid in full. The trial court awarded the Comeauxes attorney fees pursuant to Civil Code section 1717 based upon provisions in the promissory note and deed of trust providing for attorney fees.
On appeal, Baleme contends the trial court's order should be reversed because the deed of trust includes an indemnity clause that does not extend to the subject matter of this case and is not subject to section 1717, judicial estoppel does not bar him from opposing the award of attorney fees, and the court's apportionment of attorney fees must be reconsidered.
We conclude the attorney fee provision in the promissory note supports the award of attorney fees. However, we shall remand the matter with directions to the trial court to determine whether it erroneously included in its award attorney fees incurred to defend a claim for intentional interference with prospective economic advantage. FACTUAL AND PROCEDURAL BACKGROUND
Prior to the events involved in this case, Daren and Lisa Baleme and David and Natasha Comeaux were social friends. David Comeaux was a general contractor and owned his own construction company, Comeaux Construction. Sometime in the year 2000, the Balemes began talking to the Comeauxes about buying property upon which David would build a custom home for them. Daren suggested that he and Lisa borrow money from the Comeauxes to expedite the purchase until he could obtain a construction loan to pay for the property, reimburse the Comeauxes, and build the house.
The parties proceeded with this plan. The Balemes purchased the property on August 17, 2000, and entered into an oral agreement with David to build their dream home. On November 17, 2000, the Balemes signed a promissory note payable to David or Natasha Comeaux on or before December 22, 2000, in the amount of $152,250 at 11.75 percent annual interest. The note was secured by a deed of trust, naming Daren and Lisa Baleme as trustors, Alliance Title as the trustee, and Natasha or David Comeaux as beneficiaries. The promissory note contains an attorney fees clause that we set forth and discuss in Part I of the discussion.
In December, David began preliminary work on the building project and hired a subcontractor to clear and grade the land. In the same month the Balemes applied for a construction loan. Alliance Title Company handled the escrow on the loan, which was opened on December 20, 2000. Funding on the loan was delayed and the Balemes were unable to repay the promissory note on its December due date. Using funds from other sources, they made the final payment on the note sometime in late May 2001. Meanwhile, the relationship between the Balemes and the Comeauxes deteriorated. The Balemes hired a new
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