Unpublished Disposition, 902 F.2d 39 (9th Cir. 1988)

We held that the "attorneys' fees incurred by Devcoa were compensable", but we remanded the case for a redetermination of the fee amount. Kohan v. Pazargad, et al., No. 86-5840, memorandum disposition at 5 (9th Cir. Sept. 28, 1987). In the current appeal, Kohan argues that Devcoa is not entitled to any fees. Kohan contends that he was precluded from asserting that Devcoa was entitled to no fees at all by our order proposing to consolidate the fraud and attorneys' fees appeals. We find no support for this argument in the plain meaning of the consolidation order. The order provided that " [s]uch consolidation would allow the parties to file supplemental briefs on the issue of the adequacy or excessiveness of attorneys' fees, if that point remains an issue in the case." Kohan v. Pazargad, et al., No. 86-5840, order proposing consolidation (9th Cir. June 2, 1987).

Kohan also asserts he could not present in the first appeal his argument that Devcoa was entitled to no fees because that argument had not yet ripened. Kohan contends that an accord and satisfaction between the parties settled all issues including attorneys' fees, but that this argument did not ripen until the satisfaction of the parties' agreement. We find no merit in Kohan's position. The accord was satisfied April 25, 1986. The briefs in the combined appeal were submitted well after this date. There is no reason Kohan could not have advanced this argument at that time.

If counsel felt the Court's actions barred him from presenting his position, he had the opportunity to move this Court to amend its consolidation order or to reconsider our September 28, 1987 decision awarding fees to Devcoa. Fed. R. App. P. 27 & 40. Kohan did neither, and he may not now attack our decision that Devcoa was entitled to attorneys' fees and costs. Kohan waived his opportunity to address these issues. Alioto v. Cowles Communications, Inc., 623 F.2d 616, 618 (9th Cir. 1980), cert. denied, 449 U.S. 1102 (1981); Stranahan v. A/S Atlantica & Tinfos Papirfabrik, 521 F.2d 700, 702 (9th Cir. 1975); Haynes v. United States, 418 F.2d 1380, 1382 (Ct. Cl. 1969).

We now turn now to the first issue presented by the current combined appeals. Devcoa appeals the trial court's decision to halve the original award of attorneys' fees he had originally made.

On December 2, 1985, Devcoa and Grace Properties filed a motion for attorneys' fees and costs. The trial court awarded defendants $196,961.42 in fees and $56,576.30 in costs. The Court of Appeals reversed and remanded the fee determination, concluding that

because Grace assigned to Devcoa its interest in the original promissory note and deed of trust, we find no authority for the award of attorney's fees to Grace. Accordingly, we remand the case to the district court for a redetermination of the fee award. The award shall include fees allocable to Devcoa for legal services in the district court and on this appeal.

Kohan v. Pazargad, et al., No. 86-5840, memorandum disposition at 5 (9th Cir. Sept. 28, 1987).

Devcoa filed in the trial court its Motion for Redetermination of Attorneys' Fees which averred that fees in the amount of $3,790.50 were incurred solely for the benefit of Grace Properties. Devcoa avowed that the balance of services would have been required whether counsel were representing Devcoa alone or Grace Properties as well. The trial court's second order on attorneys' fees determined that

in order to abide by the spirit of the Ninth Circuit's determination that Kohan is only liable for Devcoa's fees, and since there was a commonality of interests between Devcoa and Grace, the award of $193,170.92 (fees attributable to the defense of both Devcoa and Grace) should be divided in half so as to approximate the fees reasonably expended by Devcoa, but not the fees reasonably expended by Grace.

Kohan v. Warner Center Realty, No. CV-85-1967-ER, order at 2-3 (C.D. Cal. Feb. 24, 1988).

The trial court should not have felt constrained to divide the reasonable fees by half. Our prior decision required that fees be redetermined so as to exclude fees not allocable to Devcoa. Devcoa's counsel avowed that fees of $3,790.50 of the trial court's original award were solely attributable to Grace Properties. Despite the detailed billing for attorneys' fees, Kohan has failed to show any additional specific fees solely chargeable to Grace Properties. Therefore, the appropriate attorneys' fees award is $196,961.42 less $3,790.50, or $193,170.92.

The order of the district court is affirmed in part and vacated in part with instructions to the district court to award $193,170.92 in attorneys' fees and $56,576.30 in costs.

Devcoa may recover its costs and attorneys' fees for this appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.