5D10-4034 Fernandez-Fox v. Reyes

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-4034

Case Date: 02/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

ROBERTA FERNANDEZ-FOX, Appellant, v. MARK REYES AS PERSONAL REPRESENTATIVE, ETC., Appellee. ________________________________/ Opinion filed February 17, 2012 Appeal from the Circuit Court for Seminole County, Alan A. Dickey, Judge. Thomas R. Peppler of Hochman and Peppler, LLC, Oviedo, for Appellant. James B. Byrne, Jr., Longwood for Appellee, Vivian Titus, a/ka/ Vivienne Titus. Mark Reyes of Howard Chartered, Sanford, pro se. & Reyes, Case No. 5D10-4034

SAWAYA, J. 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.

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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, 136 So. 886, 887 (Fla. 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 retained 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.

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