Filed 5/27/15
                     CERTIFIED FOR PARTIAL PUBLICATION*

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



ANIMAL PROTECTION AND RESCUE                       D065178
LEAGUE et al.,

        Plaintiffs and Respondents,
                                                   (Super. Ct. No.
        v.                                          37-2012-00086105-CU-WM-CTL)

THE CITY OF SAN DIEGO et al.,

        Defendants and Appellants.


        APPEAL from a judgment and an order of the Superior Court of San Diego

County, Joel M. Pressman, Judge. Affirmed as modified and remanded.

        Jan I. Goldsmith, City Attorney, and George F. Schaefer, Deputy City Attorney,

for Defendants and Appellants.

        Law Office of Bryan Pease, Bryan W. Pease; Law Offices of Todd T. Cardiff and

Todd T. Cardiff for Plaintiffs and Respondents.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts III.B., III.C., and III.D.
                                                I.

                                      INTRODUCTION

       The primary issue we must decide in this appeal is whether a municipality may be

considered an "opposing part[y]" for purposes of the private attorney general fee statute

(Code Civ. Proc., § 1021.5)1 when it confesses error in response to a petition for writ of

mandate challenging the municipality's action. In the published portion of this opinion,

we conclude that a municipality may be considered an opposing party under such

circumstances and that the trial court did not err in concluding that the municipality in

this case was an opposing party and awarding private attorney general fees to

respondents. In unpublished portions of this opinion, we conclude that the trial court did

not abuse its discretion in awarding respondents attorney fees for certain work performed

prior to the filing of the petition in this case, that the trial court erred in awarding

respondents costs in light of their failure to file a memorandum of costs as required under

the California Rules of Court, and that respondents are entitled to appellate attorney fees

in an amount to be determined on remand.




1     All subsequent statutory references are to the Code of Civil Procedure, unless
otherwise specified.
                                            2
                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Respondents' petition for writ of mandate and appellants' confession of error

       In November 2012, respondents Animal Protection and Rescue League, Friends of

the Seals, Ellen Shively, Deborah Saracini, Shannon Player, Robb Meade, Marilies

Schoepflin, Dorota Valli, and Jerry Horna (collectively "APRL") brought a petition for

writ of mandate against appellants City of San Diego and its Planning Commission ("the

City"),2 coupled with a request for injunctive and declaratory relief. In its petition,

APRL noted that the present litigation was related to a long-running dispute concerning

whether the City should maintain a year-round guideline rope at the La Jolla Children's

Pool for the purpose of protecting harbor seals from humans. APRL sought an order

requiring the City to vacate and set aside the Planning Commission's denial of a permit

for the guideline rope and to reinstate the findings of a hearing officer in support of the

permit.

       Approximately three months later, the City filed an answer in which it confessed

error and conceded that the "Planning Commission erred when it denied the Site

Development Permit for an annual rope barrier." The City stated that it did "not oppose




2     The City acknowledged in its answer to APRL's petition that, "The Planning
Commission . . . is not a separate legal entity from the City, but rather only a constituent
agency of the City of San Diego, a municipal corporation and chartered city."
                                               3
lawful writ relief, including a Court order directing that the denial of a Site Development

Permit be set aside."

B.     Friends of the Children's Pool's participation in the case

       On March 12, 2013, APRL filed an ex parte application for an order to show cause

seeking entry of judgment in the case. In the application, APRL stated that "[b]ecause

related case Friends of Children's Pool v. City of San Diego, case number 37-2013-

0003894-CU-WM-CTL will be made moot by APRL's writ petition being granted, this

party [Friends of the Children's Pool (FOCP)] will likely wish to be heard as well." The

following day, the trial court held a hearing on the APRL's application and granted FOCP

the right to file an opposition to APRL's anticipated filing of a motion for entry of

judgment on the writ petition in this case.

       APRL filed a motion for entry of judgment on its writ petition on March 20.

       FOCP filed an opposition to APRL's motion for entry of judgment on March 29.

That same day, the City filed a nonopposition to APRL's motion for entry of judgment in

which it noted its confession of error, and stated, "City therefore does not oppose

[APRL's] motion for entry of judgment granting writ relief."

       A few days later, FOCP filed an ex parte application for leave to file a complaint

in intervention. APRL filed an opposition and the trial court held a hearing on the

application. At the hearing, the City orally opposed FOCP's application to intervene.

The trial court denied FOCP's request to intervene in the case as a party, but indicated



                                              4
that it would consider FOCP's opposition to the motion for entry of judgment as an

amicus curiae brief.

       The City filed a reply to FOCP's amicus curiae brief in which it further explained

the basis for its confession of error, and APRL filed a reply brief in support of its motion

for entry of judgment

C.     The trial court's order and judgment granting the writ of mandate

       The trial court held a hearing on APRL's motion for entry of judgment at which

APRL, FOCP, and the City appeared. At the conclusion of the hearing, the trial court

entered an order granting APRL's petition for writ of mandate. The trial court then

entered a judgment granting APRL's petition for writ of mandate and issued a

corresponding peremptory writ of mandate.

D.     APRL's motion for attorney fees

       APRL filed a motion requesting an award of private attorney general fees in the

amount of $123,243.753 against the City pursuant to section 1021.5, which provides that

"a court may award attorneys' fees to a successful party against one or more opposing

parties in any action which has resulted in the enforcement of an important right affecting

the public interest," under certain specified circumstances. (Italics added.) APRL sought

3      The amount reflected a requested lodestar amount of $82,162.50 and a multiplier
of 1.5. (See Cates v. Chiang (2013) 213 Cal.App.4th 791, 820 [explaining that under the
"lodestar method," the "court first determines the number of hours reasonably expended
by the attorneys and then multiplies this figure by the reasonable hourly rate prevailing in
the community for similar work," and then "engages in the multiplier analysis, and
determines whether the lodestar figure should be augmented or diminished by one or
more relevant factors"].)
                                              5
fees for work performed during and prior to the filing of the litigation in this case, as well

as for work performed in services rendered in a related case (Animal Protection and

Rescue League v. Sanders (Super. Ct. San Diego County, 2012, No. 37-2012-00103629)

(APRL v. Sanders) in which APRL had sought a preliminary injunction requiring

installation of the guideline rope at issue in this case. Among other documents, APRL

lodged declarations from its attorneys and detailed time records in support of its motion.

APRL also requested that the court award it $555 in costs.

       The City opposed the motion for attorney fees on the ground that the City was

"never an opposing party" because it had "confessed error at the inception of [the] case."

The City also argued that APRL was not entitled to any fees for 58.8 hours of work that

the City claimed APRL's attorneys had performed in APRL v. Sanders because, it

claimed, that work was "not useful or necessary to . . . success in the present action." The

City maintained that APRL's request for costs was improper because APRL had failed to

file a memorandum of costs, as required.

       APRL filed a reply in which it clarified the basis for its request of an award of

attorney fees for the 58.8 hours of work performed prior to the filing of the petition in this

case to which the City had raised an objection. APRL contended that 35.05 of the 58.8

hours were spent exclusively on preparation and research for the current writ action and

23.75 were spent on tasks performed in APRL v. Sanders that were inextricably

intertwined with the present action. APRL presented a chart demonstrating 14 time

entries detailing the tasks performed in the APRL v. Sanders case that it contended were

                                              6
related to this case, and argued that it was not seeking fees for "other outside issues also

raised in APRL v. Sanders."

E.     The trial court's attorney fee and cost order

       After a hearing, the trial court entered an order on November 13 awarding APRL

$82,717.50, including $82,162.50 in attorney fees and $555 in costs. The court reasoned

in part:

           "Although the City filed a non-opposition to [APRL's] motion for
           entry of judgment in their favor, the City's action via the Planning
           Commission, caused [APRL] to bring the current action. This
           coupled with the opposition from . . . Amicus [FOCP] is enough to
           warrant [APRL's] reasonable expenses in preparing and bringing the
           current action. Therefore, [APRL is] entitled to a total of $82,717.50
           under [section] 1021.5, reflecting a costs award of $555 and a total
           of 234.75 billable hours at a rate of $350 per hour. This includes
           $61,582.50 for the current action, reflecting 175.95 billable hours,
           and $20,580 for pre-litigation hours, reflecting 35.05 billable hours
           spen[t] on preparation and research and 23.75 billable hours on tasks
           intertwined with the current case."

The trial court denied APRL's request that the court apply a multiplier to the lodestar

amount.

       That same day, the court amended the judgment to reflect the award of attorney

fees and costs in the amount of $82,717.50.

F.     The appeal

       The City appeals from the attorney fee order and the amended judgment.




                                              7
                                             III.

                                       DISCUSSION

A.    The trial court properly concluded that the City was an opposing party for
      purposes of awarding attorney fees pursuant to section 1021.5

      The City contends that the trial court erred in concluding that it was an "opposing

part[y]" for purposes of awarding attorney fees pursuant to section 1021.5.

      1.      Standard of review

      In Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1173 (Connerly), the

Supreme Court considered whether an entity called the California Business Council,

whose role in the underlying case shared attributes of both an amicus curiae and a real

party in interest, was an "opposing part[y]" within the meaning of section 1021.5. The

Connerly court began its analysis by describing the standard of review to be applied in

making such a determination.

           "The proper standard of review was set forth in Carver v. Chevron
           USA, Inc. (2002) 97 Cal.App.4th 132, 142: 'On review of an award
           of attorney fees after trial, the normal standard of review is abuse of
           discretion. However, de novo review of such a trial court order is
           warranted where the determination of whether the criteria for an
           award of attorney fees and costs in this context have been satisfied
           amounts to statutory construction and a question of law.'

           "Here, the question is whether the California Business Council can
           be assessed attorney fees under section 1021.5 as an 'opposing
           party[]' within the meaning of that statute. Under some
           circumstances, this may be a mixed question of law and fact and, if
           factual questions predominate, may warrant a deferential standard of
           review. [Citation.] As will become clear below, however, the

                                              8
            material facts in the present case are largely undisputed. The
            controversy is over whether a litigant in the California Business
            Council's somewhat unusual position can be considered an 'opposing
            party.' This is a question of law and is reviewed by us de novo.
            [Citation.]" (Connerly, supra, at pp. 1175-1176.)

       In this case, as in Connerly, the issue on appeal is whether an entity may be

assessed attorney fees under section 1021.5 as an "opposing part[y]" within the meaning

of that statute, and the material facts relevant to this determination are undisputed. (See

Connerly, supra, 37 Cal.4th at pp. 1175-1176.) Accordingly, we apply the de novo

standard of review to the City's claim.

       2.      Governing law

       Section 1021.5 provides in relevant part:

            "Upon motion, a court may award attorneys' fees to a successful
            party against one or more opposing parties in any action which has
            resulted in the enforcement of an important right affecting the public
            interest if: (a) a significant benefit, whether pecuniary or
            nonpecuniary, has been conferred on the general public or a large
            class of persons, (b) the necessity and financial burden of private
            enforcement, or of enforcement by one public entity against another
            public entity, are such as to make the award appropriate, and (c)
            such fees should not in the interest of justice be paid out of the
            recovery, if any."4 (Italics added.)

       In Connerly, the Supreme Court outlined the meaning of the terms "opposing

parties" in section 1021.5:

            "Because the term 'opposing parties' is not defined, it can be
            assumed that the Legislature was referring to the conventional

4      The City's claim on appeal relates solely to whether it was an "opposing part[y],"
under section 1021.5. The City does not raise any challenge related to the "significant
benefit," "necessity," or "interest of justice" prongs of section 1021.5.
                                                9
            definition of that term. As we have recognized, the edition of
            Black's Law Dictionary current at the time that section 1021.5 was
            drafted states that ' "[p]arty" is a technical term having a precise
            meaning in legal parlance; it refers to "those by or against whom a
            suit is brought . . . , the party plaintiff or defendant. . . ." ' [Citation.]

            "Generally speaking, the opposing party liable for attorney fees
            under section 1021.5 has been the defendant person or agency sued,
            which is responsible for initiating and maintaining actions or policies
            that are deemed harmful to the public interest and that gave rise to
            the litigation. [Citations.]" (Connerly, supra, 37 Cal.4th at pp.
            1176-1177.)

       3.      Application

       Applying the definition of opposing parties provided in Connerly, the City is the

named respondent to APRL's writ petition, and, as such, is the entity "against whom [the]

suit is brought." (Connerly, supra, 37 Cal.4th at p. 1176.) Further, the City, via its

Planning Commission, was the entity "responsible for initiating and maintaining actions

or policies . . . that gave rise to the litigation." (Id. at p. 1177.) Thus, the City fits

squarely within the definition of "opposing party" provided in Connerly. (Id. at p. 1176.)

       The City contends that it may not be considered an opposing party because, "at no

point in the litigation did the City take a position adverse to [APRL]." (Italics added.)

However, as Connerly makes clear, it is generally the entity responsible for the actions

"that gave rise to the litigation" that is an opposing party under section 1021.5.

(Connerly, supra, 37 Cal.4th at p. 1177, italics added.) There can be no question that the

City, through its Planning Commission, fits this definition. APRL sought and obtained a

peremptory writ of mandate requiring the City to vacate and set aside the Planning


                                                 10
Commission's denial of a permit for the year-round guideline rope. The fact that the City

confessed its error and agreed to have a judgment entered against it does not provide a

reasonable basis for concluding that the City may not be subject to an attorney fee award

under section 1021.5. (See Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162,

174 [rejecting party's contention that stipulated nature of judgment prevented the

awarding of attorney fees and stating "[a]n opposing party's admission or nonadmission

of liability is irrelevant for purposes of an award pursuant to section 1021.5"].)5

       Indeed, to hold that an entity may avoid being required to pay an award of attorney

fees under section 1021.5 merely by confessing error after being sued would be, as APRL

correctly points out, wholly inconsistent with the well-established catalyst theory of

recovery. "Under the catalyst theory, attorney fees may be awarded even when litigation

does not result in a judicial resolution if the defendant changes its behavior substantially

because of, and in the manner sought by, the litigation." (Graham v. DaimlerChrysler


5       At oral argument, in response to questioning from this court, the City suggested
for the first time that the trial court abused its discretion in not limiting the City's liability
for attorney fees to fees incurred prior to FOCP's participation in the case, since the
majority of the fee award is attributable to fees incurred by APRL in opposing FOCP, not
the City, in the trial court. It is well established that we need not consider claims raised
for the first time at oral argument. (See, e.g., Palp, Inc. v. Williamsburg National Ins. Co.
(2011) 200 Cal.App.4th 282, 291, fn. 2 [" 'We do not consider arguments that are raised
for the first time at oral argument' "].) Therefore, we need not consider whether the trial
court abused its discretion under section 1021.5 in failing to make such an
apportionment. In so stating, we emphasize that we express no opinion as to the legality
of any such apportionment. (See Connerly, supra, 37 Cal.4th at p. 1182 ["Given the
existence of state defendants, and their uncontroverted liability for attorney fees, making
the [amicus curiae] also liable for those fees is not necessary to fulfill [the] purpose [of
section 1021.5]"].)
                                                 11
Corp. (2004) 34 Cal.4th 553, 560, italics added.) We can conceive of no reason why

section 1021.5 should be interpreted to permit an award of attorney fees pursuant to a

catalyst theory of recovery where a defendant changes its behavior without judicial

resolution, but to deny recovery where an entity confesses error in response to ligation.

Such a holding would have the effect of encouraging entities to refuse to change their

behavior until a suit is filed and error could be confessed.6

       This court's decisions in Nestande v. Watson (2003) 111 Cal.App.4th 232

(Nestande) and McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610 (McGuigan),

on which the City relies, do not support the City's contention that it was not an "opposing

part[y]" under section 1021.5. In Nestande, this court interpreted the term "opposing

parties" as follows:

          "Section 1021.5 does not specifically define 'opposing parties.' In
          construing the statute, however, we must give the words their 'usual
          and ordinary meaning.' [Citation.] The dictionary definition of
          'opposing' is 'opposite in position' or 'active in or offering
          opposition.' [Citation.] An 'opposite party' means '[a]n adversary in
          litigation.' [Citation.] Thus, we construe the term 'opposing party'
          as used in section 1021.5 to mean a party whose position in the
          litigation was adverse to that of the prevailing party. Simply put, an




6       In its reply brief, the City contends that APRL "waived the 'catalyst theory' " of
recovery. The City misunderstands APRL's argument. APRL is not contending that it is
entitled to recover attorney fees pursuant to the catalyst theory of recovery. Rather,
APRL is contending that to adopt the argument advanced by the City on appeal would
defeat the purpose of section 1021.5 and be inconsistent with the catalyst theory. APRL
made this same argument in the trial court, noting, "Like the Petitioners in all catalyst
cases, the fact that the agency (or respondent) was willing to comply after litigation was
filed, does not preclude the award of attorney's fees."
                                               12
           'opposing party' within the meaning of section 1021.5 is a losing
           party."7 (Nestande, supra, at pp. 240-241.)

       Applying this definition, the Nestande court concluded that one respondent

(Songstand) was not entitled to recover attorney fees from two governmental actors

(Lever and Watson) who also had been named as respondents in a lawsuit brought by a

third party (Nestande). (Nestande, supra, 111 Cal. App.4th at pp. 240-241.) The

Nestande court reasoned in part, "Lever and Watson were prevailing parties on the same

side of the litigation as Songstand, and they were not opposing parties to Songstand."

(Id. at p. 241.)

       In contrast to Nestande, in this case, the City's position was "adverse to" ARPL.

(Nestande, supra, 111 Cal.App.4th at p. 241.) Further, unlike in Nestande, the City was

also clearly the "losing party," since APRL obtained a judgment against the City. (Ibid.)

Finally, unlike the governmental actors in Nestande, the City was not on the same side of

the litigation as the party seeking fees. (Ibid.)

       In McGuigan, this court applied Nestande, among other decisions, in considering

whether a municipality, as one of two settling parties defending a settlement in an appeal

pursued by third party objectors, could be assessed appellate attorney fees under section

1021.5 in favor of the other settling party (McGuigan). (McGuigan, supra, 183

Cal.App.4th at p. 618.) This court concluded that McGuigan could not recover appellate


7     Nestande was decided more than two years prior to Connerly, and thus, the
Nestande court did not apply the definition of the term "opposing part[ies]" later adopted
in Connerly. (Connerly, supra, 37 Cal.4th at p. 1176.)
                                            13
attorney fees against the municipality since, in the appeal, the municipality "was simply

not an 'opposing party' to [McGuigan] when these fees were incurred; rather, these parties

were allied in interest in defending the settlement . . . ." (Ibid.)8

       This case does not present the "unique procedural context" (McGuigan, supra, 183

Cal.App.4th at p. 618) presented in McGuigan in which one respondent seeks appellate

attorney fees from a "fellow respondent" in an appeal brought by a third party. (Id. at p.

629.) In addition, unlike in McGuigan, the City and APRL were not aligned by a

settlement that was being attacked in an appeal brought by a third party. Further, we

reject the City's argument that, viewing the record " 'realistically,' " as McGuigan

instructs, "the 'real dispute' in our case was between [FOCP] and [APRL], with the City

indisputably allied with [APRL]." On the contrary, in this case, APRL sued the City

seeking an order directing the City to take action, and, after the City confessed error,

APRL obtained a judgment against the City. In addition, FOCP is not similarly situated

to the objectors in McGuigan, who were parties to the case and who had taken the appeal

at issue. In this case, the trial court denied FOCP's motion to intervene and FOCP merely

had "an ideological or policy interest [in the case] typical of an amicus curiae . . . ."

Connerly, supra, 37 Cal.4th at p. 1181.)




8      The McGuigan court noted that McGuigan obtained $1.6 million in private
attorney general fees against the municipality in the underlying case. (McGuigan, supra,
183 Cal.App.4th at p. 621.)
                                            14
       Accordingly, we conclude that the trial court properly determined that the City

was an opposing party for purposes of awarding attorney fees pursuant to section

1021.5.9

B.     The trial court did not abuse its discretion in awarding attorney fees for work
       conducted prior to the filing of the petition in this case

       The City claims that the trial court erred in awarding APRL attorney fees for work

conducted prior to the filing of the petition in this case. We review this claim for an

abuse of discretion. (See, e.g., Concepcion v. Amscan Holdings, Inc. (2014) 223

Cal.App.4th 1309, 1319-1320 [" 'An appellate court will interfere with the trial court's

determination of the amount of reasonable attorney fees only where there has been a

manifest abuse of discretion' "].)

       The City raises several arguments in support of its claim that the trial court abused

its discretion in awarding attorney fees for prelitigation work, none of which is

persuasive. First, the City contends that the prelitigation work (i.e., attorney services

performed in connection with APRL v. Sanders and services performed in preparation of

the filing of the petition in this case) were unnecessary since the City was not an


9      In its reply brief, the City asserts for the first time, "[P]enalizing the City with an
award of fees for an erroneous permitting decision by the Planning Commission violates
the immunity protection afforded the City under Government Code sections 815.2[,
subdivision] (b), 818.4, 820.9, 821.2, and 821.6." Without suggesting that this novel
contention has merit, we decline to consider it because the City has not demonstrated
good cause for raising it for the first time in reply. (See Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points
raised in the reply brief for the first time will not be considered, unless good reason is
shown for failure to present them before. . . . " ' [citation]"].)
                                                15
opposing party in this litigation. We reject this argument for the reasons stated in part

III.A., ante. The City was an opposing party in this litigation.

       Next, the City contends that seven of the eight respondents in this case were not

parties in APRL v. Sanders and that "[t]he purpose behind [APRL v. Sanders] was less

about protecting seals and more about derailing the criminal prosecution of [Animal

Protections and Rescue League's] lawyer."10 This argument is unpersuasive because

Animal Protection and Rescue League was a litigant in both cases and APRL did not seek

any attorney fees for work performed in APRL v. Sanders related to the criminal

prosecution at issue in APRL v. Sanders.

       The City also argues that the Animal Protection and Rescue League's claim in

APRL v. Sanders seeking an injunction requiring the installation of the guideline rope

was "completely frivolous" and that the prior litigation was "not ripe" because the

Planning Commission had not yet denied the permit for the guideline rope. The fact that

Animal Protection and Rescue League did not prevail in the prior litigation does not

demonstrate that work performed in the prior litigation was not necessary to this case.

The City fails to address any of the 14 specific time entries related to the APRL v.

Sanders litigation for which APRL sought attorney fees in this case, all of which appear


10      The City noted in its brief that one of the issues in APRL v. Sanders was Animal
Protection and Rescue League's attempt to obtain a judicial declaration related to a
criminal prosecution of its attorney unrelated to the specific controversy at issue in this
case. We refer to Animal Protection and Rescue League here by its full name in order to
distinguish it from APRL, which we used to refer collectively to all of the respondents in
this case, including individual respondents.
                                               16
to be clearly related to issues litigated in this case. The City has thus failed to

demonstrate that the trial court abused its discretion in awarding APRL attorney fees for

work performed in APRL v. Sanders related to Animal Protection and Rescue League's

efforts to require the City to install a guideline rope, the same goal that APRL sought in

this case.

       Accordingly, we conclude that the trial court did not abuse its discretion in

awarding attorney fees for work conducted prior to the filing of the petition in this case.

C.     APRL concedes that the costs component of the award must be stricken because it
       failed to file a timely memorandum of costs

       The City claims that the trial court erred in awarding APRL $555 in costs. The

City argues that APRL failed to file a memorandum of costs, as is required pursuant to

California Rules of Court, rule 3.1700(a)(1), which states that "A prevailing party who

claims costs must serve and file a memorandum of costs within 15 days after the date of

mailing of the notice of entry of judgment." In their respondents' brief, APRL "waives

their right to costs based on their failure to file a memorandum of costs." We accept the

concession, and order the costs component of the trial court's attorney fee and costs

award stricken.

D.     APRL is entitled to appellate attorney fees in an amount to be determined by the
       trial court on remand

       In its respondents' brief, APRL requests attorney fees incurred in the current

appeal. As the prevailing parties on the attorney fee issue raised on appeal, they are

entitled to appellate attorney fees under section 1021.5. (See Center For Biological

                                              17
Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 624.) Accordingly,

on remand the trial court shall determine the amount of appellate attorney fees to award

APRL and enter an award accordingly. (See ibid.)

                                            IV.

                                      DISPOSITION

       The award of $555 in costs in the November 13, 2013 order and amended

judgment is stricken, thereby reducing the total award from $82,717.50 to $82,162.50.

As so modified, the November 13, 2013 order and amended judgment are affirmed.

       In the interests of justice, APRL is entitled to recover its costs on appeal. The

matter is remanded to the trial court with directions to award appellate attorney fees to

APRL in an amount to be determined by the trial court on remand.




                                                                                 AARON, J.

WE CONCUR:



            HALLER, Acting P. J.



                         IRION, J.




                                             18
