ROCKLEDGE MALL ASSOCIATES, LTD., ET AL., APPELLANTS,
v.
CUSTOM FENCES OF BREVARD, INC., APPELLEE
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The court held that the trial court abused its discretion by failing to apportion attorney's fees between a breach of contract claim and a tortious interference claim.
Custom Fences prevailed on a breach of contract claim but not on a tortious interference claim. The trial court awarded attorney's fees covering work …
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PLEUS, J.
This appeal is a companion to Case No. 5D99-3084 involving the same parties. In this case, it is argued that the trial court abused its discretion by not apportioning attorney’s fees which Custom Fences incurred in the trial of a claim for breach of contract and a separate claim for tortious interference. We agree.
In Case No. 5D99-3084, Custom Fences prevailed at trial on the breach'of contract claim and the tortious interference claim. We reversed the trial court’s judgment on the tortious interference count and directed that a judgment for Rockledge Mall and Mr. Palumbo be entered on the tortious interference claim.
Both sides concede that Custom Fences is entitled to attorney’s fees as the prevailing party on the claim for breach of a written contract which contains a provision for attorney’s fees. Clearly, no attorney’s fees can be awarded on the tortious interference claim.
The trial court awarded Custom Fences $30,067.50, which covered work on both claims. There was no allocation between the work performed on the breach of contract and the tortious'interference claims.
This court held in Plapinger v. Eastern States Properties Realty Corp., 716 So. 2d 315 (Fla. 5th DCA 1998), that the party seeking attorney’s fees on multiple claims, one of which is a claim based on a written contract, has an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees.
The contract claim and the tortious interference claim were separate and distinct causes of action rather than alternative theories of recovery for the same wrong. We therefore remand the issue of attorney’s fees to the trial court to take testimony on the possible allocation of fees between the two claims and the entry of an attorney’s fees award for the breach of contract claim only.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
GRIFFIN, J., and ORFINGER, M., Senior Judge, concur.
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Ocean Club Cmty. Ass'n, Inc. v. Curtis, 935 So. 2d 513 (Fla. 3d DCA 2006)…ees as to the conversion/unpaid wages claim, the plaintiff has “an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees.” Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So. 2d 558, 559 (Fla. 5th DCA 2001) (citing Plapinger v. E. States Props. Realty Corp., 716 So. 2d 315 (Fla. 5th DCA 1998)); see also Salisbury v. Spielvogel, 451 So. 2d 974, 975 (Fla. 4th DCA 1984) (“In seeking attorney’s fees for services in litigation where…
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Dr. Gail van Diepen, P.A. v. Brown, 55 So. 3d 612 (Fla. 5th DCA 2011)…he party seeking attorney’s fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney’s fees. See Rockledge Mall Assoc., Ltd. v. Custom Fences of Brevard, Inc., 779 So. 2d 558, 559 (Fla. 5th DCA 2001). If the moving party cannot meet his burden for any reason, including inadequate, confusing or imprecise timesheets or record keeping, he or she should not be awarded attorney’s fees for those vague or incomprehensible charg…1 / 2
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Crown Custom Homes, Inc. v. Sabatino, 18 So. 3d 738 (Fla. 2d DCA 2009)…he party seeking an award of attorney’s fees “bears ‘an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees,’ ” (quoting Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So. 2d 558, 559 (Fla. 5th DCA 2001))). We review whether the multiple claims are separate or intertwined under the de novo standard of review. See Ocean Club, 935 So. 2d at 516. Here the trial court made no factual findings to support its legal conclusion tha…
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