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Can You Get Appellate Attorney’s Fees In a Florida Partition Action?

By:  Jeffrey Skatoff, Esq.

In Whitson v. Advocate 3413 LLC, an appellate court addressed appellate attorney fees in a Florida partition action and determined that the trial court had the discretion to determine entitlement to appellate attorney fees as well as apportionment.

The Facts of Whitson v. Advocate 3413, LLC

A Florida trial court entered a final judgment of partition against Christyane Whitson, and in favor of Advocate 3413, LLC.  The Florida appellate court affirmed, but wrote to address the parties’ competing motions for appellate attorney’s fees.

Can You Get Appellate Attorney Fees In a Florida Partition Action?

Yes, you can get appellate attorney fees in a Florida partition action. Section 64.081, Florida Statutes, governs attorney fees in a partition action and 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.

The Florida appellate court explained:

Section 64.081 is not a prevailing party statute. To the contrary: Pursuant to this statute, each party to a partition action must pay a share of the attorney’s fees to the plaintiff’s 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.” 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 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.” Id.

The appellate court remanded the issue of appellate attorney fees to the trial court to determine entitlement to fees, and to apportion the fees as it determines to be reasonable. See Fernandez Fox, 79 So. 3d at 896 (“The amount of attorney’s fees to be awarded in a partition action is within the discretion of the trial court. 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.’ ” (alteration in original) (first citing Hasle v. Maasbrock, 120 So. 2d 794 (Fla. 3d DCA 1960); and then quoting Adler v. Schekter, 197 So. 2d 46, 49 (Fla. 3d DCA 1967))).

Read other Florida partition articles:  See Partition Actions in Florida and Partition Action Solves Jointly Owned Property Disputes.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

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