ROBERTA FERNANDEZ-FOX, APPELLANT,
v.
MARK REYES AS PERSONAL REPRESENTATIVE, ETC., APPELLEE
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Roberta Fernandez-Fox appeals a final judgment in a partition action, challenging the trial court's decision to award attorney's fees only to the opposing party (Mark Reyes) and not to herself. The Fifth District Court of Appeal reverses the attorney's fee award, holding that both parties rendered services of benefit to the partition and are entitled to a proportional share of fees under Florida Statute 64.081.
The court reversed the attorney's fee award, holding that both Fox and Reyes are entitled to attorney's fees proportional to their services rendered for the benefit of the partition. Although Reyes may have provided greater services due to defending against Fox's earlier counts, Fox's attorney also provided services toward partition by pleading the partition count, and thus Fox's attorney is entitled to some fee award.
[1] In a partition action, each party is generally entitled to an award of attorney's fees commensurate with the services rendered and of benefit to the partition, determined…
[2] A party's entitlement to attorney's fees in a partition action is not precluded by the fact that the party initially sought alternative relief, such as reformation of a d…
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Join FLexlaw to unlock all legal intelligence“Every party shall be bound by the judgment to pay a share of the costs, including attorneys' fees to plaintiff's or defendant's attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party's interest.”
Establishes the statutory framework for apportionment of attorney's fees in partition actions under Florida Statute 64.081
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Join FLexlaw to unlock all legal intelligenceFox and decedent David Lindsay owned property as tenants in common. After Lindsay's death, Fox filed a multi-count complaint seeking reformation of th…
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Roberta Fernandez-Fox (Fox) appeals the final judgment in favor of Mark Reyes, personal representative for the Estate of David Lindsay, and Vivian Titus, Lindsay’s step-daughter-in-law. Of the issues raised in this appeal, the only issue we will discuss is whether the trial court erred in failing to award attorney’s fees to Fox for her participation in the partition action that resulted in the final judgment we review. We reverse that part of the judgment awarding attorney’s fees only to Reyes. In all other respects, the judgment is affirmed.
Fox and the decedent, David Lindsay, owned property together. The deed specified their ownership as tenants in common. After the decedent died, Fox filed a multi-count complaint for, inter alia, reformation of the deed, imposition of a constructive trust, and to quiet title to the property. The trial court entered summary judgment in favor of Reyes on those counts. Regarding the issues Fox raises as to those counts, we affirm without further discussion.
Fox’s complaint also contained two counts pled in the alternative — one seeking imposition of an equitable lien for the amount Fox had expended in the maintenance, taxes, and mortgage on the property and the other asking for partition and an accounting and contribution for expenses she was forced to pay for the property. The case proceeded to final hearing on those counts and on Reyes’ counterclaim for partition and accounting. Each party agreed that partition of the property was appropriate, thus leaving the monetary claims to be resolved by the trial court. Partition was ordered and, because the property could not be properly divided, the court further ordered that the property be sold. Fox was awarded a certain amount pursuant to her equitable lien count and, after setoffs were calculated, she received a lien in the amount of $2,721.37. Her lien was made inferior to payment of the attorney’s fee award to Reyes for his participation in the partition action. The trial court held that Fox was not entitled to attorney’s fees for the partition action. Fox contends that it was error not to award her attorney’s fees as well. We agree.
The amount of attorney’s fees to be awarded in a partition action is within the discretion of the trial court. Hasle v. Maasbrock, 120 So.2d 794 (Fla. 3d DCA 1960). The award is based upon “ ‘[t]he service performed, the responsibility incurred, the nature of the service, the skill required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the ability of litigants to respond....’” Adler v. Schekter, 197 So.2d 46, 49 (Fla. 3d DCA 1967) (quoting Munroe v. Birdsey, 102 Fla. 544, 136 So. 886, 887 (1931)). After a trial court establishes the amount of fees, a trial court is to award fees based on section 64.081, Florida Statutes, which governs fees in partition actions. That statute provides:
Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest. Such judgment is binding on all his or her goods and chattels, lands, or tenements. In case of sale the court may order the costs and fees to be paid or *897retained out of the moneys arising from the sale and due to the parties who ought to pay the same. All taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.
§ 64.081, Fla. Stat. (2010) (emphasis added).
Pursuant to this statute, each party to a partition action must pay a share of the attorney’s fees to the plaintiffs attorney, the defendant’s attorney, or to each of them. The share is to be set with reference to the services rendered by the attorney(s) that are of benefit to the partition— “to be determined on equitable principles in proportion to the party’s interest.” Id.; see also Deshommes v. Bazin, 421 So.2d 806, 807 (Fla. 3d DCA 1982) (“This ‘apportionment’ under the statute has been interpreted to mean that the majority interest should bear the greater proportion of the fees awarded to his own attorney, as well as to the attorney for the minority interest, and the minority interest similarly should bear a share of fees in proportion to his interest.”).
Here, the court reasoned that because Fox’s first three counts essentially sought full title in herself and she had sought partition only in the alternative, it was Reyes who was the impetus for the partition action because he had sought only partition. The trial court concluded, therefore, that only Reyes was entitled to fees. We disagree.
Reyes was not the “impetus” for the partition, contrary to the trial court’s con-elusion, but rather it was Fox who first pled for partition, albeit in the alternative. After Fox suffered the partial summary judgment on her first three counts, all that was left was a trial to take evidence on the monetary claims each side was making for maintenance, etc., because, after the accounting, both sides were in agreement that partition was appropriate. Hence, we believe that both Fox’s attorney and Reyes rendered services of benefit to the partition portion of the suit. Reyes would have provided greater services because he had to defend and overcome Fox’s first three counts to even get the case into partition posture, but that fact does not preclude Fox’s attorney from receiving some award of fees based solely on the acts he or she took towards partition.1 We, therefore, conclude that the court erred by failing to make any determination regarding the amount of attorney’s fees Fox’s attorney earned advancing her partition count.
Accordingly, we reverse the award of attorney’s fees and remand with directions to the trial court to take evidence on the fees earned by Fox’s attorney for the partition count and apportion that amount in making the final fee award. In all other respects, the final judgment is affirmed.
AFFIRMED in part; REVERSED in part; and REMANDED.
PALMER and JACOBUS, JJ„ concur.
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Robinson v. Barr, 133 So. 3d 599 (Fla. 2d DCA 2014)…und that partition of the property was appropriate. Thus the trial court was required to consider and make such awards of attorney’s fees and costs as might be appropriate in accordance with the provisions of the statute. See Fernandez-Fox v. Reyes, 79 So. 3d 895, 896-97 (Fla. 5th DCA 2012); Deshommes v. Bazin, 421 So. 2d 806, 807 (Fla. 3d DCA 1982). The circumstance that both Mr. Robinson and Ms. Barr prevailed on their claims for partition but not on their requests for additional relief is not a valid reas…
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Casiano v. Casiano, 370 So. 3d 991 (Fla. 5th DCA 2023)…other party. While entitlement (and responsibility) is resolved as a matter of law by the statute, the amount of attorneys’ fees to be apportioned amongst the parties, however, is within the discretion of the trial court. Fernandez-Fox v. Reyes, 79 So. 3d 895, 896 (Fla. 5th DCA 2012). Trial courts are to determine the amount of fees owed by each party upon “equitable principles in proportion to the party’s interest.” § 64.081, Fla. Stat. “The [apportionment] is based upon the service performed, the re…
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Christyane Whitson v. Advocate 3413, 351 So. 3d 174 (Fla. 2d DCA 2022)…ey, or to each of them. The share is to be set with reference to the services rendered by the attorney(s) that are of benefit to the partition—"to be determined on equitable principles in proportion to the party's interest." Fernandez-Fox v. Reyes, 79 So. 3d 895, 897 (Fla. 5th DCA 2012) (quoting § 64.081). Moreover, the apportionment of attorney's fees under section 64.081 "has been interpreted to mean that the majority interest should bear the greater proportion of the fees awarded to his own attorney, as…
Authorities Cited
- Monroe v. Birdsey, 102 Fla. 544 (Fla. 1931)
- Adler v. Nathan Schekter et ux., 197 So. 2d 46 (Fla. 3d DCA 1967)
- Hasle v. Maasbrock, 120 So. 2d 794 (Fla. 3d DCA 1960)
- Magally Diaz v. Sec. Union Title Ins. Co., 639 So. 2d 1004 (Fla. 3d DCA 1994)
- Alvance Deshommes v. Calmita Bazin, 421 So. 2d 806 (Fla. 3d DCA 1982)