Gradow

Concurring and Dissenting. I respectfully dissent from that portion of the majority opinion which holds that the award of $4,153.53 to plaintiff as costs on the prior appeal must be included in the recovery obtained in the second trial for purposes of determining whether plaintiff was a prevailing party pursuant to defendant’s offer under section 998 of the California Code of Civil Procedure. The majority opines that since the defendant prevailed upon plaintiff to defer collection of the previously awarded costs, such costs must necessarily be included in the calculation of the total award at the second trial. The majority suggests in dictum that had the defendant paid the costs or, inferably, had the plaintiff reduced the award on the prior appeal to a judgment then the prior award would have been excludable. The issue is one of first impression. I find the majority opinion on the issue strained. The majority overlooks or chooses to disregard the fact that right to collect the prior award on appeal became “vested” on the day that the costs were awarded, i.e., on December 11,1990. The vesting date preceded the judgment in the second trial (July 15, 1992) by two and one-half years…

The primary issue raised in defendant’s appeal is whether costs awarded after a successful appeal were properly considered pre-offer costs in determining whether the plaintiff received a more favorable result at trial after rejecting an offer of settlement pursuant to Code of Civil Procedure section 998. We affirm the trial court’s finding those costs should be included in determining plaintiffs net recovery in this case. We dismiss plaintiff’s appeal as untimely.

Facts and Proceedings Below

In 1982, Fundamental Investment Growth Shelter Realty Fund 1-1973, a California limited partnership (plaintiff) and its general partner, Donald R. Dunn, filed an action against the former general partner, George S. Gradow (defendant), and two corporations which he controlled, Trafalgar Management Company and Churchill Group Ltd. Plaintiff’s complaint alleged causes of action for breach of contract, breach of fiduciary duty, fraud, concealment, intentional misrepresentation and conversion.

In 1990 this court reversed a summary judgment in favor of defendant and awarded costs to plaintiff as the prevailing party on appeal. Later proceedings in the trial court determined plaintiffs…

The primary issue raised in defendant's appeal is whether costs awarded after a successful appeal were properly considered pre-offer costs in determining whether the plaintiff received a more favorable result at trial after rejecting an offer of settlement pursuant to Code of Civil Procedure section 998. We affirm the trial court's finding those costs should be included in determining plaintiff's net recovery in this case. We dismiss plaintiff's appeal as untimely.

In 1982, Fundamental Investment Growth Shelter Realty Fund I-1973, a California limited partnership (plaintiff) and its general partner, Donald R. Dunn, filed an action against the former general partner, George S. Gradow (defendant), and two corporations which he controlled, Trafalgar Management Company and Churchill Group Ltd. Plaintiff's complaint alleged causes of action for breach of contract, breach of fiduciary duty, fraud, concealment, intentional misrepresentation and conversion.

In 1990 this court reversed a summary judgment in favor of defendant and awarded costs to plaintiff as the prevailing party on appeal. Later proceedings in the trial court determined plaintiff's costs on appeal…