Kirchner v. Interfirst Capital Corp., 98-2811.
| Decision Date | 21 May 1999 |
| Docket Number | No. 98-2811.,98-2811. |
| Citation | 732 So.2d 482 |
| Parties | Wendy KIRCHNER, Appellant, v. INTERFIRST CAPITAL CORPORATION, etc., Appellee. |
| Court | Florida District Court of Appeals |
Neal J. Blaher, Orlando, for Appellant.
Alan M. Grunspan of Kaufman, Miller, Dickstein & Grunspan, P.A., Miami, for Appellee.
In this case, Wendy Kirchner's claim against Interfirst was submitted to arbitration on a number of theories including her allegation that Interfirst violated the provisions of the Florida Securities & Investor Protection Act. The arbitration's result was in her favor, and the arbitration award provided the following concerning attorney's fees:
The law in the state of Florida provides that arbitrators in an arbitration proceeding whose venue lies within the State of Florida lack the authority to make a determination with regard to the entitlement to and amount, if any, of an award of counsel fees. Therefore, the parties are referred to a court of competent jurisdiction for a determination in this regard.
Kirchner applied to the circuit court for attorney's fees, which were denied in reliance on Pharmacy Management Services, Inc. v. Perschon, 622 So.2d 75 (Fla. 2d DCA 1993). This was error. Perschon merely holds that when the arbitrator has various theories before him, some of which authorize attorney's fees and some of which do not, if the arbitrator fails to disclose the basis of his decision, a court should not award attorney's fees. This is because the one seeking an award of attorney's fees has the burden of proving entitlement. We agree with the holding in Perschon.
Perschon is simply inapplicable to the case before us. Although the arbitrator must indicate that the one seeking attorney's fees prevailed on a cause of action authorizing fees, this indication may be either direct or indirect. Here, the arbitration award clearly held that the defendant breached its obligations under the applicable consumer protection provisions of the securities law (such breach authorizes the imposition of attorney's fees) and, regardless of the arbitrators' findings related to her other claims, the statutorily authorized attorney's fees should have been awarded.
Kirchner, a widow with three children, entrusted a good portion of her estate ($26,500) to defendant who invested the money in risky commodities options with the result that in a short period Kirchner had lost practically all of her investment. The arbitration award states:
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...Id. at 489 (citing Wieneke, 591 So.2d at 957-58). The Fifth District also considered the issue in Kirchner v. Interfirst Capital Corp., 732 So.2d 482 (Fla. 5th DCA 1999), where the court held that "[a]lthough the arbitrator must indicate that the one seeking attorney's fees prevailed on a c......
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