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For the lack of a contract with an attorneys fees provision, a family-owned walnut farm about 15 miles northeast of Stockton is out $750,000 in fees. Brittalia Ventures got the bad news on Tuesday when the Third District Court of Appeal reversed the fee award, which had followed the farm’s $4.5 million victory in a breach-of-warranty suit against Stuke Nursery Co. Inc. Justice Rodney Davis ruled that even though Brittalia was the prevailing party, it wasn’t entitled to fees because the contract it relied on at trial didn’t contain an attorneys fees provision. It didn’t matter that Stuke Nursery had defended itself by relying on a separate contract that con-tained a fee provision, Davis wrote. “Brittalia cannot be allowed to win on its contract action,” the justice wrote, “by championing one contract without an attorney fee provision, and then turn around and ask for attorney fees as prevailing party based on a different contract with an attorney fee provision that Brittalia had to defeat to secure its victory. “That,” he added, “would provide a new twist on the concept of contract shopping.” Justices Ronald Robie and M. Kathleen Butz concurred. Brittalia Ventures, situated in the small town of Linden, sued in 2001 after discovering that more than 5,000 of the 14,000 walnut trees sold to the farm by Stuke Nursery weren’t the proper variety. In addition, Brittalia claimed that nearly 43 percent of the trees were infected with crown gall, a cancer-like illness that in ad-vanced stages can devastate orchards. Brittalia relied on a Feb. 19, 1998, purchase proposal and check. Stuke Nursery, located 60 miles north of Sacramento in the town of Gridley, defended, however, by arguing that the contract encompassed additional documents. After jurors awarded Brittalia damages, San Joaquin County Superior Court Judge Carter Holly granted the farm $750,000 in attorneys fees. The judge relied on state Civil Code �1717, which permits attorneys fees for the prevailing party in contract disputes. On Tuesday, though, the Third District held that Brittalia wasn’t entitled even though the state statute is supposed to ensure that both sides in a dispute are mutually eligible for fees. That didn’t apply in this situation, Justice Davis wrote, because Stuke Nursery “defended by alleging the purchase encompassed a different contract with different facts.” In other words, he said, it wouldn’t be fair to award Brittalia fees when the contract it relied on contained no attorneys fees provision. “Brittalia has gotten its contractual cake,” Davis wrote, “and will now have to eat its own attorney fees.” Brittalia’s lawyer, William Parish, a partner in Stockton’s Parish & Small, said Tuesday he wasn’t sure whether he would petition the state Supreme Court for re-view. “We’re disappointed,” he said, “and believe that the [Third District] didn’t address the context in which the attorney fees should have been awarded. For example, had the nursery sued us on their contract, it seems clear to me that we would have been entitled to attorney fees. “Simply because the nursery chose to as-sert it as a defense,” he added, “is a dis-tinction without a difference.” Neither of Stuke Nursery’s lawyers � Jerome Falk Jr., a partner in San Francisco’s Howard, Rice, Nemerovski, Canady, Falk & Rabkin, and Richard Archbold, a partner in Stockton’s Askew & Archbold � were available for com-ment late Tuesday afternoon. The ruling is Brittalia Ventures v. Stuke Nursery Co. Inc., 07 C.D.O.S. 8134.

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