The California Court of Appeals decision in Bilodeau v. Modern Mobile Homes, Inc. provides a cautionary tale to contract drafters. A prevailing party in an arbitration sought to recover attorneys’ fees incurred in connection with post-award proceedings that unsuccessfully sought to vacate the arbitration award. As the court noted, the arbitration provision contained in the parties’ purchase agreement “did not contain an attorney fee clause.” However, the promissory note used to effect the purchase did contain such a provision: “If any action is instituted on this Note, I/we promise to pay such sums as the Court may fix as attorney’s fees.”
Notwithstanding the attorneys’ fees language in the promissory note, the court held that the arbitration agreement in the purchase agreement controlled and its failure to include an attorneys’ fee provision precluded their award by the court.
positivelyneutral.com 