ZAREMBA FLORIDA COMPANY, AN OHIO CORPORATION, ET AL., APPELLANTS,
v.
JOAN AND BARBARA KLINGER, ET AL., APPELLEES
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In this condominium dispute appeal, the court reversed attorney's fee awards that compensated plaintiffs for work on all nine counts of their complaint, holding that fees should be limited to work related only to the one count on which plaintiffs prevailed on appeal. The court clarified that while not all work need be apportioned on a strict one-ninth basis, fees must be fairly attributable to the successful count.
The court reversed the fee awards and remanded, holding that attorney's fees must be limited to fees generated in connection with the one count on which plaintiffs prevailed. The nine counts constituted independent actions involving different alleged wrongs rather than alternative theories of liability for the same wrong. However, time spent on work fairly attributable to multiple counts may be included if directly related to the successful count.
[1] Appellate attorney's fees are recoverable only for the specific count on which a party prevails on appeal, especially when the counts in the complaint allege independent…
[2] When a party prevails on only one of multiple independent counts in a complaint, appellate attorney's fees should be awarded only for the work reasonably related to that…
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Join FLexlaw to unlock all legal intelligence“the plaintiffs Joan and Barbara Klinger were the prevailing parties on only one count of their nine-count complaint, and, under the circumstances of this case, were entitled to appellate attorney's fees generated only in connection with that one count, rather than all nine counts as the trial court concluded.”
Establishes the core holding that fees must be limited to the successful count
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Join FLexlaw to unlock all legal intelligenceCondominium unit owners (Klingers) sued developer Zaremba Florida Company on nine counts involving alleged wrongs in the sale of condominium units, in…
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PER CURIAM.
This is an appeal by the defendants [Zaremba Florida Co., et al.] from certain orders awarding attorney’s fees to the plaintiffs [Joan and Barbara Klinger] for being partially successful in prosecuting an appeal before this court in an action brought by condominium unit owners against a condominium developer.
This court reversed a judgment entered in favor of the defendant condominium developer as to one count in the plaintiffs’ complaint concerning misleading advertising as to the jogging path and vita course promised by the defendant developers. Klinger v. Zaremba Fla. Co., 502 So. 2d 1252 (Fla. 3d DCA 1986), rev. denied, 513 So. 2d 1064 (Fla.1987).
This court further granted the plaintiff unit owners’ motion for appellate attorney’s fees under Section 718.506(2), Florida Statutes (1987), and remanded the cause to the trial court to set the amount of the fees; the orders under review were entered in compliance with our attorney's fee order. We treat the instant notice of appeal as being, in effect, a motion under Fla.R. App.P. 9.400(c) to review all three orders entered by the trial court setting the amount of attorney’s fees in compliance with our prior attorney’s fee order. General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 512 So. 2d 344, 346-47 (Fla. 4th DCA 1987); Starcher v. Starcher, 430 So. 2d 991, 993 (Fla. 4th DCA 1983); Craft v. Clarembeaux, 162 So. 2d 325, 326 (Fla. 2d DCA 1964).
We grant the motion to review under Fla.R.App.P. 9.400(c), reverse the three orders below setting the amount of attorney’s fees in this case, and remand for further proceedings. We reach this result because, simply stated, the plaintiffs Joan and Barbara Klinger were the prevailing parties on only one count of their nine-count complaint, and, under the circumstances of this case, were entitled to appellate attorney’s fees generated only in connection with that one count, rather than all nine counts as the trial court concluded. This is so because the nine counts in the subject complaint were all independent actions involving different alleged wrongs in connection with the sale of condominium units — rather than being alternative theories of liability for the same wrong.
Accordingly, upon remand, the trial court is directed to award appellate attorney's fees only in connection with the one count of the complaint on which Joan and Barbara Klinger prevailed on appeal. Folta v. Bolton, 493 So. 2d 440, 442 (Fla.1986); Florida Patients’ Compensation Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla.1985).
Our decision herein necessarily moots the separate appeal filed by the defendant developer seeking review of the denial of its motion to vacate the third attorney’s fee order entered below. We also see no error in the denial of the motion for protective order. Reversed and remanded.
PER CURIAM.
Appellees incorrectly assume that the court’s opinion requires reduction of the attorney’s fee award to one-ninth of the original amount. The opinion does not so state.
The trial court on remand is to determine a reasonable time allowance for the count on which plaintiffs prevailed. The inquiry is for a fair allowance assuming the case had only involved the single issue. We do not assume that all of the counts were of equal difficulty.
Moreover, some of counsel’s work may be fairly attributable to all counts, or multiple counts. Such time may be included, so long as it is fairly attributable to the count on which plaintiffs prevailed. See Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988); Caplan v. 1616 East Sunrise Motors, Inc., 522 So. 2d 920, 922 (Fla. 3d DCA 1988). We have onlyrejected the proposition that all nine counts were alternatives for each other, and thus have declined to affirm the original fee awarded. The fee should be adjusted on remand to fairly compensate for work reasonably related to the count on which plaintiffs prevailed.
The motion for rehearing is denied.
HUBBART and COPE, JJ., concur.
SCHWARTZ, Chief Judge
(specially concurring).
I would deny the motion for rehearing without opinion.
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Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999)…insurance company. See, e.g., State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla.1993). . U.S.B. alleged that the decision below conflicts with Underwood v. Elliott, 601 So. 2d 317 (Fla. 1st DCA 1992), and Zaremba Florida Co. v. Klinger, 550 So. 2d 1131 (Fla. 3d DCA 1989). . U.S.B. claimed that the decision below conflicts with Turner v. State, 557 So. 2d 939 (Fla. 5th DCA 1990), Bouchard v. State Department of Business Regulation, 448 So. 2d 1126 (Fla. 2nd DCA 1984), Speed v. Florida Department o…
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The Green Cos., Inc. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119 (Fla. 3d DCA 1995)…]he Folta rule is not applicable when the litigation involves alternative theories of liability for the same wrong ...” Consolidated S. Sec., Inc. v. Geniac and Assocs., Inc., 619 So. 2d 1027, 1028 (Fla. 2d DCA 1993); Zaremba Florida Co. v. Klinger, 550 So. 2d 1131, 1132 (Fla. 3d DCA 1989). In the instant case, the action was bifurcated only on the question of remedies; that is to say, the issue in the equitable proceeding was whether Kendall and Scandinavian were currently breaching the parking agreement and,…
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Sourcetrack, LLC v. Ariba, Inc., 34 So. 3d 766 (Fla. 2d DCA 2010)…ger Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st DCA 1997) (noting that “the correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review” under rule 9.400(c)); Zaremba Fla. Co. v. Klinger, 550 So. 2d 1131, 1132 (Fla. 3d DCA 1989) (treating the appeal of an order on attorney’s fees entered after a remand from the district court as a motion for review of fees under rule 9.400(c)). We disapprove the order in part and remand for further proceedings.1 Th…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Folta v. Joseph Bolton, M.D., 493 So. 2d 440 (Fla. 1986)
- Caplan v. 1616 E. Sunrise Motors, Inc., 522 So. 2d 920 (Fla. 3d DCA 1988)
- Craft v. Marcel Clarembeaux, 162 So. 2d 325 (Fla. 2d DCA 1964)
- Starcher v. Starcher, 430 So. 2d 991 (Fla. 4th DCA 1983)
- Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988)
- McMANUS v. State Farm Ins. Co., 512 So. 2d 344 (Fla. 4th DCA 1987)
- Gen. Accident Ins. Co. v. Packal, 512 So. 2d 344 (Fla. 4th DCA 1987)
- Klinger v. Zaremba Fla. Co., 502 So. 2d 1252 (Fla. 3d DCA 1986)