Kelley

After an unfavorable award at a judicial arbitration, the plaintiffs, Jack E. Kelley, Jr., and Jeanette Bailey-Kelley, requested a trial de novo, but later voluntarily dismissed their action with prejudice. The trial court vacated the dismissal, reinstated the arbitration award, and entered judgment against the plaintiffs pursuant to that award. Concluding that the trial court’s order is both appealable and correct, we affirm.

Procedural Background and Facts

On March 14, 1990, plaintiffs, the daughter and son-in-law of defendant Jean Bredelis, filed suit against her for damages for breach of contract and specific performance of an alleged written lease and option contract concerning defendant’s home. The lease contained the following attorney fee provision: “Should any litigation be commenced between the parties hereto concerning the demised premises, this lease, or the rights and duties of either in relation thereto, the party, Lessee or Lessor, prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for his attorney’s fees in such litigation.”

*1823 On August 29, 1990, defendant filed her…

I respectfully dissent.

I agree with my colleagues in the majority that, even though it arose out of an arbitration award, the judgment is reviewable on appeal. However, I respectfully dissent from that portion of the majority’s opinion which affirms that judgment.

Introduction

This litigation was terminated when, in response to the plaintiffs’ request, their entire action was dismissed with prejudice. Not content with that resolution, the trial court decided to reopen the litigation for the sole purpose of entering a judgment against the plaintiffs upon which to base an award of attorney fees to the defendant. In affirming the actions of the trial court, the majority concludes that the defendant is entitled to recover her attorney fees under Civil Code section 1717, and that the trial court was justified in vacating the plaintiffs’ dismissal with prejudice so that those fees could be awarded to her.

The decision to award fees in this procedural circumstance requires the balancing of competing public policy interests. On the one hand, public policy favors the voluntary resolution of disputes. On the other, it also favors the enforcement of attorney fee clauses in…

HOLLENHORST, Acting P.J.

After an unfavorable award at a judicial arbitration, the plaintiffs, Jack E. Kelley, Jr., and Jeanette Bailey-Kelley, requested a trial de novo, but later voluntarily dismissed their action with prejudice. The trial court vacated the dismissal, reinstated the arbitration award, and entered judgment against the plaintiffs pursuant to that award. Concluding that the trial court's order is both appealable and correct, we affirm.

On March 14, 1990, plaintiffs, the daughter and son-in-law of defendant Jean Bredelis, filed suit against her for damages for breach of contract and specific performance of an alleged written lease and option contract concerning defendant's home. The lease contained the following attorney fee provision: "Should any litigation be commenced between the parties hereto concerning the demised premises, this lease, or the rights and duties of either in relation thereto, the party, Lessee or Lessor, prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for his attorney's fees in such litigation."

On August 29, 1990, defendant filed her verified answer to…