Secord v. Massingham &
Associates Mgt., Inc.

 

 

 

Filed 12/24/13  Secord v. Massingham & Associates Mgt.,
Inc. CA6

 

 

 

 

 

>NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SIXTH APPELLATE DISTRICT

 

 
>

JONATHAN SECORD,   Plaintiff and Respondent,   v.   MASSINGHAM & ASSOCIATES MANAGEMENT, INC.,   Defendant and Appellant.

H038290      (Santa Clara County       Super. Ct. No. CV172115)

 

            Defendant
Massingham & Associates Management, Inc. (Massingham) brings this appeal to
challenge an order enforcing a settlement
agreement with plaintiff Jonathan Secord. 
Even disregarding the procedural defects in Massingham's appeal, we find
the settlement issue it raises to be moot. 
Accordingly, we will dismiss the appeal.

Background

            According
to Massingham, "[t]he principal facts relevant to this appeal are not in
dispute."  On the contrary, they are
very much in dispute.  Nevertheless,
because the issues between the parties are of only academic significance, the factual
discrepancies are not material to the outcome of the appeal. 

            In
January 2010, plaintiff Secord, a homeowner and member of the Siena at Montecito
Vista HOA (Siena), unsuccessfully ran for election to the Siena board of
directors.  Secord brought suit to
invalidate the election, naming both Siena and Massingham,
Siena's management company.  Siena
cross-complained against Massingham and two other corporations.  Secord obtained a temporary restraining order
and was thereafter elected to the board. 
He then sought to recover his legal
fees and court costs.

            Secord
and his attorney attended an afternoon settlement hearing on October 26, 2011, presided over by temporary judge Phil Young.  Also present were Siena's counsel, John
Downing, who informed the court that for purposes of the settlement he
represented all the defendants, including Massingham.   The parties announced that they had agreed
on settlement terms, which called for specified payments to Secord from all
defendants.  Massingham was to pay
$5,500, mutual releases would be drafted, and should enforcement of the
agreement be necessary, attorney fees
would be payable to the prevailing party. 
Downing offered to draft the written agreement, and he confirmed that he
represented all of the defendants. 

            When
the Hon. Patricia M. Lucas appeared, she recited her understanding that the
parties intended this agreement to be enforceable, and she obtained from Downing
a date for dismissal with prejudice of all claims in the action. 

            What
was not revealed at the settlement hearing was a private agreement between
Downing and Massingham's counsel, Jeffrey Cereghino, in which Massingham agreed
to contribute $5,500 in exchange for Siena's consent to
a one-year extension of Massingham's management contract.  Downing did not believe he needed to make this
agreement part of the record, because Secord was not part of the negotiations
between the two cross-defendants, Massingham and Siena. 

            When
a draft of the written settlement agreement was circulated, Massingham added a
new term extending its management contract.href="#_ftn1" name="_ftnref1" title="">[1]  Secord opposed the new
language, and the parties agreed that the extension should be provided in a
separate agreement rather than the global release.  Massingham and the other defendants paid
their settlement shares, but Massingham did not sign the written agreement.

            By
this time Secord was on the Siena board as its treasurer.  On December 29, 2011, the board voted (2-1) to terminate Massingham's contract and
notified the company of its decision. 
The next day, however, the board rescinded that decision (with Secord
voting against rescission). 

            On
January 23,
2012, Secord moved to enforce the
settlement and award attorney fees pursuant to the agreement.  On March 14, 2012, Judge
Lucas found Secord to be "clearly the prevailing party" and awarded
him $9,878.46 for attorney fees and costs, for which Siena and
Massingham were jointly and severally liable. 
Following a tentative ruling entered earlier (which is not in the
record), the court entered judgment on the motion on April 5, 2012, finding "uncontradicted evidence" that in the settlement
proceedings Massingham had been represented by Downing.  The court therefore granted the motion as to
both Siena and Massingham and restated its prior award of attorney fees. 

Discussion

1.  Defective Notice
of Appeal

            Massingham
fails at the outset to present a proper appeal. 
It asserts that it is appealing from the April 5, 2012 judgment, but its notice of appeal and Civil Case Information
Statement indicate that it is appealing from the order three weeks earlier,
which awarded Secord attorney fees. 
Thus, only the correctness of the attorney fees order is properly before
us and we need not address the superior court's decision to enforce the
settlement agreement.  Nevertheless, given
the rules prescribing liberal construction of notices of appeal, and inasmuch
as the notice of appeal was filed after the entry of judgment, we may construe
it as having been taken from the judgment rather than from the preceding order
awarding attorney fees.  As Secord does
not object to such treatment, we proceed to address Massingham's assertion of
error in enforcing the settlement. 

2.  Mootness

            The
premise of Massingham's position on appeal is that the one-year extension of
its management contract was a "material and essential term" of the
settlement.  Because this extension
provision "was never articulated" at the settlement hearing, he
argues, "there was no meeting of the minds and no settlement." 

            This
court is mystified as to what Massingham hopes to accomplish in this appeal.  If, as Massingham maintains, a condition of
settlement was the contract extension, the record demonstrates that it obtained
that extension.  The full settlement
amount has been paid.  Now, having agreed
to settle Secord's demand for attorney fees, Massingham is incurring even more
expense by challenging the enforcement of the order, even though it received
exactly what it had demanded without further judicial intervention.  Massingham professes to seek a remand
"for further dispensation"; but he does not identify what action
should be taken next or what benefit he can obtain from a reversal.  

            Secord
raised the question of mootness in his respondent's brief, but Massingham
elected not to reply.  We invited
Massingham to submit an informal letter brief explaining why this appeal should
not be dismissed as moot, and it accepted the invitation.  Yet it continued to assert error without acknowledging
that it received what it had demanded. Instead, Massingham suggested that the
issue "will be moot," and posits issues over the attorney fee award
and satisfaction of judgment, which were, of course, not raised in its
appellate brief.  We now conclude that
the appeal should be dismissed.

            "It
is well settled that an appellate court will decide only actual
controversies." (Finnie v. Town of
Tiburon (1988) 199 Cal.App.3d 1, 10.) 
"An appellate court will not review questions which are moot and
which are only of academic importance. It will not undertake to determine
abstract questions of law at the request of a party who shows that no
substantial rights can be affected by the decision either way."  (Keefer
v. Keefer (1939) 31 Cal.App.2d 335, 337; see also City of Lodi v. Randtron (2004) 118 Cal.App.4th 337, 363 [question
becomes moot "when the appellate court is unable to grant any effectual
relief or render an opinion that affects the matter at issue"; >MHC Operating Limited Partnership v. City of
San Jose (2003) 106 Cal.App.4th 204, 214 [appeal is subject to dismissal
for mootness if reviewing court's decision can have no practical impact or
provide effective relief]; Mercury
Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 78 [same].)  This principle is applicable here, where
Massingham has asked for a decision that at best would confirm that the contract-extension
term was included in the settlement, but would have no practical impact on the
relationship between the parties because Massingham received exactly what it
wanted from the settlement.

Disposition

            The
appeal is dismissed.  

 

                                                                        ELIA,
J.

 

WE CONCUR:

            RUSHING,
P. J.

            PREMO,
J.