Hampton's Estate v. Fairchild-Florida Const. Co., FAIRCHILD-FLORIDA

CourtUnited States State Supreme Court of Florida
Writing for the CourtHATCHETT; OVERTON
Citation341 So.2d 759
PartiesESTATE of Eunice G. HAMPTON, Deceased, Appellant, v.CONSTRUCTION COMPANY, a Florida Corporation, Appellee.
Docket NumberNo. 48755,FAIRCHILD-FLORIDA
Decision Date12 November 1976

Page 759

341 So.2d 759
ESTATE of Eunice G. HAMPTON, Deceased, Appellant,
v.
FAIRCHILD-FLORIDA CONSTRUCTION COMPANY, a Florida Corporation, Appellee.
No. 48755.
Supreme Court of Florida.
Nov. 12, 1976.
Rehearing Denied Feb. 16, 1977.

Page 760

Thomas F. Woods, of Woods & Johnston, Tallahassee, for appellant.

Helen C. Ellis and Michael L. Granger, of Keen, O'Kelley & Spitz, Tallahassee, for appellee.

HATCHETT, Justice.

The executor of the estate of Eunice G. Hampton brought suit against Fairchild-Florida Construction Co., appellee here, in connection with a parcel of real estate that had belonged to Eunice G. Hampton, and that adjoins real estate owned by the appellee. The executor sought to establish a statutory way of necessity, pursuant to Section 704.01(2), Florida Statutes (1975), 1 to allow ingress and egress over appellee's land. The trial court entered judgment for appellee, because the proof failed to establish that the real property belonging to the estate was 'being used or (was) desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes.' Section 704.01(2), Supra. No question as to the judgment on the merits has been raised here. The dispute centers on the trial court's award of an attorney's fee to appellee, the successful defendant below. In setting forth reasons for the award, the learned trial judge construed provisions of the Florida Constitution. 2 Accordingly

Page 761

we have jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.

In general, attorney's fees are not recoverable unless a statute or a contract specifically authorizes their recovery, or unless equity allows attorneys' fees from a fund or estate which has been benefitted by the rendering of legal services. Selby v. Bullock, 287 So.2d 18 (Fla.1973) (reh. den. 1974); Rivera v. Deauville Hotel, 277 So.2d 265 (Fla.1973); Stone v. Jeffres, 208 So.2d 827 (Fla.1968). In the words of Mr. Justice Drew:

It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967) (on rehearing 1968) (citation omitted)

There is no contract here nor any equitable fund or estate, but appellee argues that Section 73.091, Florida Statutes (1975), authorizes the award of attorneys' fees in proceedings to establish statutory ways of necessity. Section 73.091 directs the award of a reasonable attorney's fee in eminent domain cases brought under the provisions of Chapter 73, Florida Statutes, but does not purport to authorize the award of attorneys' fees in litigation brought under statutes in other chapters. The action in the present case was brought pursuant to Section 704.01, Florida Statutes (1975), which is silent as to attorneys' fees.

Appellee argues that proceedings under Section 704.01 are in reality eminent domain proceedings, 3 relying on dicta in Stein v. Darby, 126 So.2d 313 (Fla.1st DCA 1961), cert. den. 134 So.2d 232 (Fla.1961) to the effect that Chapter 704, Florida Statutes, was enacted 'to (com)plement the common law rule with a statutory...

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40 practice notes
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...Insurance Co. v. Consolidated Systems, Inc., 465 F.2d 710, 716 (5th Cir. 1972); Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Campbell v. Maze, 339 So.2d 202 (Fla.1976); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973); Stone ......
  • State of Wis. Inv. Bd. v. Plantation Square Assoc., No. 88-1883-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 6, 1991
    ...otherwise. Fox v. City of West Palm Beach, 383 F.2d 189, 195 (11th Cir.1967); Estate of Hampton v. Fairchild-Florida Constr. Co., 341 So.2d 759, 761 (Fla.1977). The Plaintiff has shown no statutory or contractual basis for asserting a demand for attorneys' fees under any of its four claims.......
  • Leitman v. Boone, No. 82-1517
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 1983
    ...an attorney in creating or bringing into the court a fund or other property. See Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Rader v. Recarey, 352 So.2d 550 (Fla. 3d ......
  • Sholkoff v. Boca Raton Community Hosp., Inc., No. 95-3865
    • United States
    • Court of Appeal of Florida (US)
    • May 21, 1997
    ...in advance or when the legislature has so provided in an applicable statute. See Hampton's Estate v. Fairchild-Florida Const. Inc., 341 So.2d 759 (Fla.1976); Campbell v. Maze 339 So.2d 202 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Larson v. Warren, 132 So.2d 177, appeal dism'd, ......
  • Request a trial to view additional results
40 cases
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...Insurance Co. v. Consolidated Systems, Inc., 465 F.2d 710, 716 (5th Cir. 1972); Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Campbell v. Maze, 339 So.2d 202 (Fla.1976); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973); Stone ......
  • State of Wis. Inv. Bd. v. Plantation Square Assoc., No. 88-1883-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 6, 1991
    ...otherwise. Fox v. City of West Palm Beach, 383 F.2d 189, 195 (11th Cir.1967); Estate of Hampton v. Fairchild-Florida Constr. Co., 341 So.2d 759, 761 (Fla.1977). The Plaintiff has shown no statutory or contractual basis for asserting a demand for attorneys' fees under any of its four claims.......
  • Leitman v. Boone, No. 82-1517
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 1983
    ...an attorney in creating or bringing into the court a fund or other property. See Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Rader v. Recarey, 352 So.2d 550 (Fla. 3d ......
  • Sholkoff v. Boca Raton Community Hosp., Inc., No. 95-3865
    • United States
    • Court of Appeal of Florida (US)
    • May 21, 1997
    ...in advance or when the legislature has so provided in an applicable statute. See Hampton's Estate v. Fairchild-Florida Const. Inc., 341 So.2d 759 (Fla.1976); Campbell v. Maze 339 So.2d 202 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Larson v. Warren, 132 So.2d 177, appeal dism'd, ......
  • Request a trial to view additional results

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