- Court
- Florida Third District Court of Appeal
- Case Number
- 3D2025-1520
- Date Filed
- May 27, 2026
- Judge
- Lobree, J.
- Disposition
- Reversed and remanded with directions (on motion for rehearing)
Background
Frank Wolland brought a partition action against Lynn Wolland regarding a jewelry collection. After proceedings, the trial court entered a final judgment determining that Frank’s attorney had rendered services of benefit to the partition and was entitled to attorney’s fees under section 64.081, Florida Statutes (2023). However, the trial court apportioned the entire responsibility for payment of those attorney’s fees solely to Lynn.
Lynn appealed, arguing the trial court lacked discretion under section 64.081 to assign liability for partition fees to only one party.
Holding
The Third DCA reversed (on a substitute opinion following the denial of a rehearing motion). While the trial court acted within its discretion in determining that Frank’s attorney rendered services of benefit to the partition and was therefore entitled to fees, it lacked discretion to assign liability for those fees only to Lynn.
Section 64.081 provides: “Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees . . . 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 court cited Diaz v. Security Union Title Insurance Co., 639 So. 2d 1004, 1006 (Fla. 3d DCA 1994), holding that “attorneys’ fees in a partition action are to be paid ‘in proportion to [the party’s] interest'” — meaning each co-tenant is liable only for their proportional share.
The court also cited Adler v. Schekter, 197 So. 2d 46, 50 (Fla. 3d DCA 1967), establishing that “the burden of attorney’s fees in a partition suit is to be borne by the parties in proportion to their interests.”
Key Takeaways
- Section 64.081 mandates that partition attorney’s fees be apportioned between all parties in proportion to their interests in the property.
- A trial court has discretion to determine whether services benefited the partition, but lacks discretion to deviate from proportional allocation of the resulting fee liability.
- This rule applies regardless of which party’s attorney rendered the services — the fee burden is shared proportionally.
- To preserve a challenge to the failure to make required Rowe findings, a party must raise the issue in a motion for rehearing under Rule 1.530(a).
Why It Matters
This decision clarifies a fundamental limitation on judicial discretion in partition fee awards. While trial courts retain broad discretion in many aspects of partition proceedings, section 64.081’s proportionality requirement is mandatory, not discretionary. The practical consequence is that a prevailing party in a partition action cannot shift 100% of their attorney’s fees to the opposing party — they can only recover the opposing party’s proportional share based on that party’s interest in the property. This protects co-tenants from being unfairly burdened with the full cost of litigation that may have been initiated by the other party.