Horath v. Hess

Filed 4/10/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ELSIE HORATH, D063124; D063709

Plaintiff and Respondent,

v. (Super. Ct. No.
37-2010-00104019-CU-PA-CTL)
JOHN HESS,

Defendant and Appellant.

CONSOLIDATED APPEALS from a judgment and postjudgment order of the

Superior Court of San Diego County, Ronald Prager, Judge. The judgment is affirmed;

the postjudgment order is reversed and remanded for further proceedings.

Law Offices of Kim L. Bensen, Todd G. Glanz; Pollak, Vida & Fisher and Daniel

P. Barer for Defendant and Appellant.

The McCabe Law Firm, James M. McCabe; Law Office of Robert Hamparyan,

Robert Hamparyan; Boudreau Williams and Jon R. Williams for Plaintiff and

Respondent.

In his first appeal (Case No. D063124), defendant John Hess appeals a judgment

entered confirming an arbitration award in favor of plaintiff Elsie Horath in the amount of
$366,527.22. On appeal, he argues the trial court erred by entering the judgment

because: (1) Horath had stipulated in writing before the arbitration proceeding that she

would accept the arbitrator's award or $100,000, whichever amount was less, plus

allowable costs; and (2) he was not required to timely move to correct or vacate the

arbitrator's award and instead could tender $100,000, plus costs, after the judgment was

entered on that award and thereby fully satisfy the judgment pursuant to Code of Civil

Procedure sections 724.010 and 724.050.1

In his second appeal (Case No. D063709), Hess appeals a postjudgment order

denying his section 724.050 motion for acknowledgement of satisfaction of judgment.

He argues the court erred because the undisputed facts show he satisfied the judgment by

tendering $100,000, plus costs, to Horath. He also argues the court erred by awarding

Horath $5,000 in attorney fees as the prevailing party pursuant to section 724.080. We

consolidated the appeals and conclude the trial court erred by denying Hess's section

724.050 motion for acknowledgement of satisfaction of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. D063124. Horath apparently was injured when Hess's car struck the rear

of her vehicle, and filed a personal injury action against Hess. On November 18, 2011,

the parties' attorneys entered into a written stipulation (Stipulation) to submit the dispute

to an arbitrator for private binding arbitration. The Stipulation states:

1 All further statutory references are to the Code of Civil Procedure.

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 "IT IS HEREBY STIPULATED AND AGREED . . . that this matter
be submitted to private BINDING ARBITRATION.

"The award shall be in writing and signed by the Arbitrator. It shall
include a determination of all questions submitted to the Arbitrator
the decision of which is necessary in order to determine the
controversy. Any party to the arbitration shall be entitled to have
the award of the Arbitrator entered as a judgment in any court of
competent jurisdiction in accordance with California Code of Civil
Procedure § 1285 et seq.

"THE PARTIES further agree that Defendant [i.e., Hess] will pay
the award of the Arbitrator or $44,000[,] whichever is greater, and
Plaintiff [i.e., Horath] will accept the award of the Arbitrator or
$100,000, whichever is less but in no event less than $44,000. The
forgoing amounts are not inclusive of allowable costs including costs
of proof, if applicable, which may be awarded by the Arbitrator and
are in addition to the amounts stated above. Parties to share cost of
Arbitration equally.

"The terms of this agreement, or the limits of any liability insurance
policy which may afford coverage to [Hess,] may not be disclosed to
the Arbitrator." (Italics added.)

On February 3, 2012, the arbitrator, Thomas E. Gniatkowski, issued a decision

finding Hess liable and awarding Horath $329,644.61 in damages. Thereafter, per

Horath's request, the arbitrator awarded her costs in the amount of $36,882.61.

Therefore, the total amount of the arbitration award (Award) was $366,527.22.

On May 21, 2012, Horath filed a petition to confirm the Award in the total amount

of $366,527.22. On June 27, more than 100 days after the date of the Award, Hess filed a

motion to limit the judgment to the amount of $100,000, citing the Stipulation's

limitations on the amounts to which the parties agreed. Horath opposed the motion,

arguing it was, in effect, a motion to "correct" the Award and, as such, was not timely

filed within the 100-day limit under sections 1288 and 1288.2. On July 20, the trial court

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issued an order granting Horath's petition to confirm the Award and denying Hess's

motion. The court stated Hess's motion to vacate or correct the Award was not filed

within the 100-day limit under section 1288.

Hess filed a section 473 motion for reconsideration, arguing again that the

Stipulation limited the amount Horath could recover to $100,000. The court denied that

motion, finding Hess had not shown grounds for relief under section 473. On September

27, 2012, the court entered judgment for Horath in the amount of $366,527.22. Hess

timely filed a notice of appeal in Case No. D063124 challenging the judgment.

Case No. D063709. On December 3, 2012, Hess filed a motion for

acknowledgment of satisfaction of judgment, arguing he had paid Horath $100,000 plus

costs and is therefore entitled to an acknowledgment of full satisfaction pursuant to the

terms of the Stipulation and section 724.050.2 He stated he was not challenging the

Award or the judgment, but was instead seeking to enforce the terms of the Stipulation

pursuant to which Horath had agreed to accept $100,000 plus costs, regardless of the

amount of the arbitration award or judgment. He further stated that his motion did not

seek reconsideration of the trial court's prior rulings.

Horath opposed the motion, arguing Hess's attempts to vacate or correct the

Award had already been decided by the court in its prior rulings in the case. She argued

section 724.050 was not a proper procedural vehicle for Hess to collaterally attack the

2 The record in Case No. D063124 shows that on October 30, 2012, Horath's
attorney filed an acknowledgment of partial satisfaction of judgment, acknowledging
receipt from Hess of the amount of $136,882.61.

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Award and judgment and, in any event, she did not accept Hess's tender of $100,000 plus

costs as full satisfaction of the judgment.3 Horath also sought an award of attorney fees

for opposing Hess's motion. On March 15, 2013, the trial court issued an order denying

Hess's section 724.050 motion for acknowledgement of satisfaction of judgment. The

court stated that Hess "asks the Court to imply terms set forth in the [S]tipulation that are

not apparent on the face of the [A]ward. This . . . would be an unauthorized modification

of the [A]ward." It further stated Hess had failed to timely file motions to modify the

Award as reflected in its prior rulings. It also found Hess had not objected to the

judgment prior to its entry. The court awarded Horath $5,000 for attorney fees pursuant

to section 724.080. Hess timely filed a notice of appeal in Case No. D063709

challenging the postjudgment order denying his section 724.050 motion.

DISCUSSION

Case No. D063709

I

Appealability

Because our disposition of Case No. D063709 will make the appeal in Case

No. D063124 moot, we first address Hess's appeal of the trial court's postjudgment order

denying his section 724.050 motion for acknowledgment of satisfaction of judgment. In

so doing, we first decide the court's postjudgment order is an appealable postjudgment

3 Horath also argued Hess had not paid postjudgment interest that had accrued since
the judgment was entered.

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order under section 904.1, subdivision (a)(2). "An appeal . . . may be taken from any of

the following: [¶] (1) From a judgment . . . . [¶] (2) From an order made after a

judgment made appealable by paragraph (1)." (§ 904.1, subd. (a).) Postjudgment orders

granting or denying section 724.050 motions are appealable. (McCall v. Four Star Music

Co. (1996) 51 Cal.App.4th 1394, 1398; Pecaflor Construction, Inc. v. Landes (1988) 198

Cal.App.3d 342, 345; Yanchor v. Kagan (1971) 22 Cal.App.3d 544, 546 [Code Civ.

Proc., former § 675].)

II

Interpretation of the Stipulation and Application of Section 724.050

The crux of this case involves the proper interpretation of the Stipulation and the

applicability of section 724.050 to enforce its terms. Hess asserts the Stipulation sets

forth an agreement that Horath will accept $100,000 plus costs as payment in full of the

Award and the judgment, regardless of whether he timely sought to vacate or correct the

Award prior to entry of the judgment. In contrast, Horath apparently argues the

Stipulation did not exempt Hess from the requirement that he timely seek to vacate or

correct the Award to reflect the parties' agreement regarding the maximum amount she

would accept as payment.

A

A written stipulation or other agreement to arbitrate a controversy is subject to the

general rules of contract enforcement and interpretation. (Maggio v. Windward Capital

Management Co. (2000) 80 Cal.App.4th 1210, 1214.) Section 1281 provides: "A written

agreement to submit to arbitration an existing controversy or a controversy thereafter

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arising is valid, enforceable and irrevocable, save upon such grounds as exist for the

revocation of any contract." The California Supreme Court stated: "The fundamental

goal of contractual interpretation is to give effect to the mutual intention of the parties.

(Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code,

§ 1638.)" (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.)

Another court described the principles to be applied when interpreting a contract,

stating: "When considering a question of contractual interpretation, we apply the

following rules. 'A contract must be so interpreted as to give effect to the mutual

intention of the parties as it existed at the time of contracting, so far as the same is

ascertainable and lawful.' [Citation.] 'The language of a contract is to govern its

interpretation, if the language is clear and explicit, and does not involve an absurdity.'

[Citation.] 'When a contract is reduced to writing, the intention of the parties is to be

ascertained from the writing alone, if possible . . . .' " (WYDA Associates v. Merner

(1996) 42 Cal.App.4th 1702, 1709 (WYDA).) "The mutual intention to which the courts

give effect is determined by objective manifestations of the parties' intent, including the

words used in the agreement, as well as extrinsic evidence of such objective matters as

the surrounding circumstances under which the parties negotiated or entered into the

contract; the object, nature and subject matter of the contract; and the subsequent conduct

of the parties." (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.)

"When a dispute arises over the meaning of contract language, the first question to

be decided is whether the language is 'reasonably susceptible' to the interpretation urged

by the party. If it is not, the case is over. [Citation.] If the court decides the language is

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reasonably susceptible to the interpretation urged, the court moves to the second

question: what did the parties intend the language to mean? [Citation.] [¶] Whether the

contract is reasonably susceptible to a party's interpretation can be determined from the

language of the contract itself [citation] or from extrinsic evidence of the parties' intent

[citation]." (Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839,

847-848.) If a contract is susceptible to two different reasonable interpretations, the

contract is ambiguous. (Ibid.) A court must then construe that ambiguous contract

language "by applying the standard rules of interpretation in order to give effect to the

mutual intention of the parties [citation]." (Badie v. Bank of America (1998) 67

Cal.App.4th 779, 798.)

On appeal, a "trial court's ruling on the threshold determination of 'ambiguity' (i.e.,

whether the proffered evidence is relevant to prove a meaning to which the language is

reasonably susceptible) is a question of law, not of fact. [Citation.] Thus[,] the threshold

determination of ambiguity is subject to independent review." (Winet v. Price (1992) 4

Cal.App.4th 1159, 1165.) If the contract language is determined to be ambiguous and

conflicting extrinsic evidence was admitted on the meaning of that language, "any

reasonable construction will be upheld as long as it is supported by substantial evidence."

(Id. at p. 1166.) If, however, no extrinsic evidence was admitted or the extrinsic evidence

is not conflicting, the construction of the ambiguous contract language is a question of

law subject to our independent construction. (Ibid.) Because the evidence in this case is

undisputed, we construe the Stipulation de novo, or independently, and do not defer to

the trial court's interpretation. (Maggio v. Windward Capital Management Co., supra, 80

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Cal.App.4th at p. 1214; Vianna v. Doctors' Management Co. (1994) 27 Cal.App.4th

1186, 1189.)

B

Prior to trial, the parties' attorneys signed the Stipulation on behalf of their clients.

Horath does not dispute, and we presume, her attorney had the authority to legally bind

her to the terms of the Stipulation. The Stipulation provided the arbitrator was to

determine all questions submitted to him or her as necessary to decide the controversy.

Importantly, it also provided that any party was entitled to have the arbitrator's award

entered as a judgment in any court with jurisdiction pursuant to section 1285 et seq. The

Stipulation then provided the parties agreed that "Defendant [i.e., Hess] will pay the

award of the Arbitrator or $44,000[,] whichever is greater, and Plaintiff [i.e., Horath] will

accept the award of the Arbitrator or $100,000, whichever is less but in no event less

than $44,000. The forgoing amounts are not inclusive of allowable costs including costs

of proof, if applicable, which may be awarded by the Arbitrator and are in addition to the

amounts stated above." (Italics added.) Finally, it provided that the terms of the

Stipulation were not to be disclosed to the arbitrator.

Because the language of the Stipulation clearly and explicitly states the arbitrator

was not to be informed about its "high-low" or other provisions, the arbitrator was

charged with determining the parties' controversy without any limitations on the amount

of the arbitration award. The Stipulation's language also clearly and explicitly states that

any party (e.g., Horath) could have the arbitration award entered as a judgment pursuant

to section 1285 et seq. (i.e., by means of a petition to confirm the award). However, in

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the event the arbitration award exceeded $100,000, the Stipulation provides that Horath

would accept a maximum amount of $100,000 plus costs. The Stipulation does not

contain any language requiring Hess, to enforce the Stipulation's "high-low" provision, to

file a motion to vacate or correct the arbitration award or respond to a petition to confirm

the award. Rather, the clear and explicit language of the Stipulation provides for the

filing of a petition to confirm the arbitration award in its full amount and entry of

judgment, without regard to the Stipulation's "high-low" limit on the amount Hess is

required to pay Horath. Horath does not cite any language in the Stipulation, or any

extrinsic evidence that supports any reasonable interpretation, requiring Hess to file a

petition to vacate or correct the arbitration award based on the Stipulation's "high-low"

limitation provision. Because the Stipulation is not reasonably susceptible to Horath's

suggested interpretation to the contrary, we conclude it is unambiguous and therefore

apply its clear and explicit language to the undisputed facts in this case.

Applying the clear language of the Stipulation to the undisputed facts in this case,

there can be only one reasonable interpretation regarding its "high-low" provision. We

conclude the Stipulation's language implicitly, if not expressly, prohibited Hess from

challenging the amount of the Award or the judgment. The Stipulation provided Horath

had the right to have the Award entered as a judgment in accordance with section 1285 et

seq. (i.e., a petition to confirm the Award). Hess could not challenge the amount of the

Award or amount of the judgment pursuant to a petition to confirm the Award.

Therefore, to enforce the Stipulation's "high-low" provision, Hess necessarily would have

the right to fully satisfy that judgment by paying or tendering an amount within the "high-

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low" provision (i.e., a maximum amount of $100,000 plus costs). Horath expressly

agreed in the Stipulation to accept the amount of the Award or $100,000, whichever was

less (not including costs awarded by the arbitrator). That contractual provision bound

Horath to accept $100,000 plus costs in full satisfaction of the judgment entered

confirming the Award.

C

Because of Horath's refusal to file an acknowledgment of full satisfaction of

judgment, Hess properly filed a section 724.050 motion to require her to do so or, if she

refused, to obtain a court-entered satisfaction of judgment. As Hess asserts, section

724.050 provides the sole statutory procedure to require a judgment creditor to file an

acknowledgment of satisfaction of judgment or, if he or she refuses, to obtain a

satisfaction of judgment entered by the court clerk. (Quintana v. Gibson (2003) 113

Cal.App.4th 89, 91 ["[T]he noticed motion procedure set forth in . . . section 724.050 is

the exclusive method for obtaining an order for entry of satisfaction of judgment."].)

"The statutory scheme [i.e., section 724.050] provides only a single method for a

judgment debtor to obtain an order for entry of satisfaction of judgment . . . in those cases

in which the judgment creditor refuses or fails to file or deliver a signed acknowledgment

of satisfaction [of judgment]." (Id. at p. 94.)

Section 724.010, subdivision (a), provides: "A money judgment may be satisfied

by payment of the full amount required to satisfy the judgment or by acceptance by the

judgment creditor of a lesser sum in full satisfaction of the judgment." (Italics added.)

Therefore, if a judgment creditor accepts, or contractually agrees to accept, a lesser sum

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in full satisfaction of the judgment, the tender or payment of that lesser sum by a

judgment debtor will fully satisfy a judgment for a greater amount. (§ 724.010, subd.

(a).) On such satisfaction, the court clerk shall enter a satisfaction of money judgment

when either an acknowledgment of satisfaction of judgment is filed with the court or the

court orders entry of satisfaction of judgment. (§ 724.020.) When a money judgment is

satisfied, the judgment creditor is required to immediately file with the court an

acknowledgment of satisfaction of judgment. (§ 724.030.) However, if the judgment

creditor does not do so (as in this case), section 724.050 provides the procedures the

judgment debtor must follow to obtain such an acknowledgment or a court-entered

satisfaction of judgment. Section 724.050 provides:

"(a) If a money judgment has been satisfied, the judgment debtor . . .
may serve personally or by mail on the judgment creditor a demand
in writing that the judgment creditor do one or both of the following:

"(1) File an acknowledgment of satisfaction of judgment with the
court.

"(2) Execute, acknowledge, and deliver an acknowledgment of
satisfaction of judgment to the person who made the demand.
[¶] . . . [¶]

"(c) If the judgment has been satisfied, the judgment creditor shall
comply with the demand not later than 15 days after actual receipt of
the demand.

"(d) If the judgment creditor does not comply with the demand
within the time allowed, the person making the demand may apply to
the court on noticed motion for an order requiring the judgment
creditor to comply with the demand. . . . If the court determines that
the judgment has been satisfied and that the judgment creditor has
not complied with the demand, the court shall either (1) order the
judgment creditor to comply with the demand or (2) order the court
clerk to enter satisfaction of the judgment.

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 "(e) If the judgment has been satisfied and the judgment creditor
fails without just cause to comply with the demand within the time
allowed, the judgment creditor is liable to the person who made the
demand for all damages sustained by reason of such failure and shall
also forfeit one hundred dollars ($100) to such person. Liability
under this subdivision may be determined in the proceedings on the
motion pursuant to subdivision (d) or in an action." (Italics added.)

Contrary to Horath's assertion, relevant case law supports our reasoning. In

Walton v. Mueller (2009) 180 Cal.App.4th 161, cited by Hess, a $40,000 default

judgment was entered against a debtor. (Id. at p. 164.) Two years later, following

settlement negotiations, the judgment debtor in a letter purported to accept the judgment

creditor's offer to accept a lump sum payment of $15,000 in full satisfaction of the

judgment, enclosing a photocopy of a cashier's check for that amount. (Id. at pp. 165-

166.) The judgment creditor claimed his settlement offer had been previously rejected by

the debtor during negotiations and demanded payment of $60,000. (Id. at p. 166.) The

judgment debtor filed a section 664.6 motion to enforce the purported settlement

agreement allowing him to pay only $15,000 in full satisfaction of the judgment. (Ibid.)

The trial court denied the motion. (Ibid.) On appeal, after concluding the trial court

properly found the section 664.6 procedure was inapplicable to enforcement of an alleged

settlement agreement after a judgment is entered and there is no pending litigation,

Walton discussed the availability of section 724.050 to enforce an agreement to accept

less than the full amount of a judgment. (Walton, at p. 174.) Walton stated:

"[S]tatutory authority concerning the satisfaction of judgments only
confirms that a judgment debtor . . . who wishes to enforce an
alleged agreement to satisfy a judgment, whether for full payment or
something less than that, is not without a remedy. But it is not

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 section 664.6. Section 724.050, subdivision (d), specifically
provides a noticed motion procedure to compel a judgment creditor
to furnish an acknowledgment of satisfaction of judgment through
which a trial court may determine whether an agreement for full
satisfaction has been reached. The statutory scheme for satisfaction
of judgment (§ 724.010 et seq.), which includes this section, has
been characterized as providing 'only a single method for a judgment
debtor to obtain an order for entry of satisfaction of judgment . . . in
those cases in which the judgment creditor refuses or fails to file or
deliver a signed acknowledgment of satisfaction. . . . There is no
other procedure [than section 724.050] authorizing a noticed motion
for entry of satisfaction of judgment.' [Citations.] [The judgment
debtor's] alleged settlement agreement is just the kind of agreement
for which section 724.050, subdivision (d) is available--to compel
the judgment creditor to furnish an acknowledgment of satisfaction
of judgment based on an agreement to satisfy the judgment by
payment for less than the full face amount." (Walton v. Mueller,
supra, 180 Cal.App.4th at p. 174, italics added; see also Yost-Linn
Lumber & Finance Co. v. Bennett (1931) 116 Cal.App. 155, 157
[trial court was authorized to find the judgment creditor had "agreed
to accept" the sum of $606 in satisfaction of the $839 default
judgment].)

Although the language quoted above may be dicta, we nevertheless agree with Walton's

conclusion that section 724.050 provides the method for a judgment debtor to enforce a

judgment creditor's agreement to accept less than the full amount of the judgment and

obtain an acknowledgment of satisfaction of judgment after tendering or paying that

agreed-on lesser amount. When a judgment debtor files a section 724.050 motion, the

court may determine whether there was an agreement for satisfaction of the judgment by

payment of less than the full amount of the judgment. (Walton, at p. 174.)

Based on our review of the undisputed facts in this case, we conclude Horath and

Hess agreed in the Stipulation that Horath would accept payment of less than the amount

of the Award and the judgment if the Award (and amount of the judgment) exceeded

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$100,000 plus costs. More specifically, Horath agreed in the Stipulation to accept

payment of $100,000 plus costs if the Award and the judgment entered exceeded

$100,000 plus costs. By filing a section 724.050 motion, Hess properly sought to enforce

Horath's agreement to accept payment of $100,000 plus costs as full satisfaction of the

judgment in the amount of $366,527.22 that was entered confirming the Award. By

concluding otherwise, the trial court erred.

We disagree with Horath's assertion, adopted by the trial court, that Walton is

inapposite to this case because in Walton the agreement arose after the judgment was

entered and in this case the agreement arose before the judgment was entered (and before

the arbitration proceeding and Award). That is a distinction without a difference. The

point in time when a judgment creditor (or potential judgment creditor) agrees to accept

payment of an amount less than the full amount of the judgment (or potential judgment)

is irrelevant to the enforceability of that agreement. Rather, it is the existence of that

agreement alone that leads to its enforceability under section 724.050 and general

principles of contract law. There is no logical reason to preclude a creditor and debtor

from agreeing in advance of entry of a judgment that a creditor will accept payment of

less than the full amount of the judgment entered thereafter as full satisfaction of that

judgment.

In this case, both parties benefited by the Stipulation's "high-low" provision. If the

amount of the Award and judgment was less than $44,000, Horath would benefit by

requiring Hess to pay her $44,000 plus any costs awarded by the arbitrator. On the other

hand, if the amount of the Award and judgment was more than $100,000, Hess would

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benefit by having to pay Horath only $100,000 plus costs awarded by the arbitrator.

When the latter scenario ultimately resulted and the amount of the Award and judgment

exceeded $100,000, Horath's agreement to accept payment from Hess of only $100,000

plus costs remained enforceable after issuance of the Award and entry of the judgment,

and was properly enforced by Hess pursuant to a section 724.050 motion. As we

concluded above, Hess was not required to first file a motion to vacate or correct the

Award to enforce Horath's agreement by filing a section 724.050 motion.4 On remand,

the trial court shall consider anew Hess's section 724.050 motion and, on a showing he

satisfied the statutory prerequisites for relief thereunder, shall issue a new order granting

relief under section 724.050, subdivision (d), and awarding him any damages that may be

appropriate under section 724.050, subdivision (e), and reasonable attorney fees under

section 724.080.5

4 Also, as we concluded above, the Stipulation provided that the Award (and
implicitly the judgment) was not to be limited by the Stipulation's "high-low" provision.
Therefore, as Hess asserts, there were no valid grounds on which he could challenge the
Award by filing a petition to vacate or confirm it. The fact that he attempted to enforce
the Stipulation's "high-low" provision by filing a (presumably untimely) motion to limit
the amount of the Award and judgment entered thereon did not preclude him from
subsequently filing his section 724.050 motion to enforce Horath's agreement to accept
payment of a lesser amount than the amount of the Award and judgment as full
satisfaction of the judgment.

5 Section 724.080 provides: "In an action or proceeding maintained pursuant to this
chapter, the court shall award reasonable attorney's fees to the prevailing party."

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 III

Court's Award of Attorney Fees to Horath

Hess contends the trial court also erred by awarding Horath attorney fees in the

amount of $5,000 pursuant to section 724.080. Because we reverse the trial court's order

denying Hess's section 724.050 motion, Horath is not the prevailing party and is not

entitled to reasonable attorney fees as a prevailing party under section 724.080.

Accordingly, the court's award of $5,000 in attorney fees to Horath must also be reversed.

Case No. D063124

IV

Mootness of Other Appeal

Hess apparently contends in his appeal in Case No. D063124 that the judgment

must be reversed because the trial court erred by denying his postjudgment section

724.050 motion. However, in his appellate briefs Hess concedes he did not have any

valid grounds on which to challenge the Award or entry of the judgment. His appeal in

Case No. D063124 apparently was filed as a "protective" appeal to ensure he did not

waive any arguments he raised in his appeal in Case No. D063709. Because we reverse

the court's postjudgment order denying Hess's section 724.050 motion, the appeal in Case

No. D063124 is moot and we need not, and do not, address its merits. Nevertheless,

given Hess's concession the judgment was properly entered, we affirm the judgment and

reverse the postjudgment order.

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 DISPOSITION

The judgment is affirmed. The order denying Hess's section 724.050 motion for

acknowledgment of satisfaction of judgment is reversed and the matter is remanded for

further proceedings consistent with this opinion. Hess shall recover his costs of appeal.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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