Nimmagadda

The question presented is whether, following affirmance of an order for a limited new trial, an order which in effect fixes the amount of attorney fees incurred by the parties prevailing on the appeal but which makes the actual award and recovery of those fees contingent on future events, is, in the absence of those contingencies, appealable. We hold that the order is not appealable.

Background

The acrimonious breakup of their partnership with defendants motivated plaintiffs to commence an action seeking various forms of legal and equitable relief. Trial of plaintiffs’ complaint and defendants’ cross-complaint resulted in a jury returning substantial damage verdicts for plaintiffs. The trial court thereafter accepted plaintiffs’ argument that the damages awarded were inadequate, and granted their motion for a partial new trial on the sole issue of damages. We affirmed the new trial order, specifying that plaintiffs “shall recover their costs of appeal.” (Nimmagadda v. Krishnamurthy (June 8, 1990) A042747 [nonpub. opn.].)

Upon the filing of our remittitur in the trial court, plaintiffs noticed a “Motion To Recover Attorneys Fees As Costs On Appeal.” Based on an attorney…