SCOTT LEVINE
v.
BONNIE STIMMEL
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A party awarded attorney's fees under section 736.1004, Florida Statutes, may not recover fees for hours spent litigating an unsuccessful alternative motion for fees under section 57.105.
[1] A statute authorizing attorney's fees is in derogation of the common law rule that each party pay its own attorney's fees and must be strictly construed, such that a part…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is the 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.”
Court citing Van Diepen v. Brown regarding burden of proof for fee allocation
Scott Levine filed suit against his sister Bonnie Stimmel alleging undue influence, tortious interference, breach of fiduciary duty, and other claims …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SCOTT LEVINE,
Appellant,
v. Case No. 5D17-2572
BONNIE STIMMEL,
Appellee.
________________________________/
Opinion filed May 17, 2019
Appeal from the Circuit Court for Orange County, Donald A. Myers, Jr., Judge.
John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant.
Alexander S. Douglas, II, Robert Clayton Roesch, and Loren M. Vasquez, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellee.
WALLIS, J.
Appellant, Scott Levine, appeals the supplemental final judgment, awarding Appellee, Bonnie Stimmel, attorney's fees and costs pursuant to section 736.1004, Florida Statutes (2017). Appellant raises several arguments on appeal, one of which has merit. Because Appellee may not recover attorney’s fees for the hours spent litigating the
2 entitlement to fees for an unsuccessful section 57.105, Florida Statutes (2017), motion, we reverse in part and remand with instructions. In all other respects we affirm. After Appellant became aware of his father's extensive gifting to his sister, Appellee, Appellant filed a complaint against Appellee, claiming: (1) undue influence; (2) tortious interference with an expectancy; (3) breach of fiduciary duty; (4) removal of trustee; (5) accounting; and (6) appointment of special fiduciary. The trial court entered final judgment in favor of Appellee. Thereafter, Appellee moved for attorney's fees and costs pursuant to section 736.1004(1)(a), Florida Statutes, arguing that she was entitled to fees because Appellant's claims revolved around her alleged breaches of fiduciary duty. In addition, Appellee moved separately for attorney's fees and costs pursuant to section 57.105, Florida Statutes, claiming that she was entitled to fees because Appellant chose to prosecute baseless claims. The trial court denied the section 57.105 motion for attorney's fees but granted the section 736.1004(1)(a) motion. However, when determining the amount of the attorney's fees award, Appellee included in her request the time spent litigating the entitlement to fees for the unsuccessful section 57.105 motion. Accordingly, Appellant sought a reduction of approximately $16,000 for the work connected to the section 57.105 motion. Ultimately, the trial court reduced Appellee's requested attorney's fee amount by approximately $20,000. However, the trial court's rationale in reducing the award is unclear.
As the party seeking attorney's fees pursuant to section 736.1004, Appellee had the burden to demonstrate what portion of the attorneys' efforts were expended on claims for which section 736.1004 authorized attorney's fees. See Van Diepen v. Brown, 55 So.
ORFINGER and LAMBERT, JJ., concur.
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Citator
Authorities Cited
- Willis Shaw Express, Inc. v. Hilyer SOD, Inc., 849 So. 2d 276 (Fla. 2003)
- Dr. Gail van Diepen, P.A. v. Brown, 55 So. 3d 612 (Fla. 5th DCA 2011)
- Sand Lake Hills Homeowners Ass'n, Inc. v. Busch, 210 So. 3d 706 (Fla. 5th DCA 2017)