Zaremba Florida Co. v. Klinger, s. 88-1239

• Decision Date: 13 June 1989
• Docket Number: 88-2072 and 88-2170,Nos. 88-1239,s. 88-1239
• Citation: 14 Fla. L. Weekly 1433,550 So.2d 1131
• Parties: 14 Fla. L. Weekly 1433, 14 Fla. L. Weekly 2142 ZAREMBA FLORIDA COMPANY, an Ohio corporation, et al., Appellants, v. Joan and Barbara KLINGER, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1131

550 So.2d 1131

14 Fla. L. Weekly 1433, 14 Fla. L. Weekly 2142

ZAREMBA FLORIDA COMPANY, an Ohio corporation, et al., Appellants, v.Joan and Barbara KLINGER, et al., Appellees.

Nos. 88-1239, 88-2072 and 88-2170.

District Court of Appeal of Florida Third District.

June 13, 1989.

On Motion for Rehearing Sept. 12, 1989.

Brenner & Dienstag and Elizabeth J. Rickenbacker and Mark Dienstag, Miami, for appellants.

Ann Mason Parker, Coral Gables; Joyce M. Siemon, North Miami Beach, for appellees.

Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.

PER CURIAM.

This is an appeal by the defendants[Zaremba Florida Co., et al.] from certain orders awarding attorney's fees to the plaintiffs[Joan and Barbara Klinger] for being partially successful in prosecuting an appeal before this court in an action brought by condominium unit owners against a condominium developer.This court reversed a judgment entered in favor of the defendant condominium developer as to one count in the plaintiffs' complaint concerning misleading advertising as to the jogging path and vita course promised by the defendant developers.Klinger v. Zaremba Fla. Co., 502 So.2d 1252(Fla. 3d DCA1986), rev. denied, 513 So.2d 1064(Fla.1987).This court further granted the plaintiff unit owners' motion for appellate attorney's fees under Section 718.506(2), Florida Statutes(1987), and remanded the cause to the trial court to set the amount of the fees; the orders under review were entered in compliance with our attorney's fee order.We treat the instant notice of appeal as being, in effect, a motion under Fla.R.App.P. 9.400(c) to review all three orders entered by the trial court setting the amount of attorney's fees in compliance with our prior attorney's fee order.General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 512 So.2d 344, 346-47(Fla. 4th DCA1987);Starcher v. Starcher, 430 So.2d 991, 993(Fla. 4th DCA1983);Craft v. Clarembeaux, 162 So.2d 325, 326(Fla. 2d DCA1964).

We grant the motion to review under Fla.R.App.P. 9.400(c), reverse the three orders below setting the amount of attorney's fees in this case, and remand for further proceedings.We reach this result because, simply stated, the plaintiffs Joan and Barbara Klinger were the prevailing parties on only one count of their nine-count complaint, and, under the circumstances of this case, were entitled to appellate attorney's fees generated only in connection with that one count, rather than all nine counts as the trial court concluded.This is so because the nine counts in the subject complaint were all independent actions involving different alleged wrongs in connection with the sale of condominium units--rather than being alternative theories of liability for the same wrong.Accordingly, upon remand, the trial court is directed to award appellate attorney's fees only in connection with the one count of the complaint on which Joan and Barbara Klinger prevailed on appeal.Folta v. Bolton, 493 So.2d 440, 442(Fla.1986);Florida Patients' Compensation Fund v. Rowe, 472 So.2d 1145, 1151(Fla.1985).

Our decision herein necessarily moots the...