Martin v. Estate of Ricks

KEHOE, Judge. Appellant, plaintiff below, brings this appeal from a final judgment of partition dated August 31, 1977, entered by the trial court. Appellant’s two basic points on appeal are that, in paragraphs 4, 5, 6, and 7 of the final judgment, the trial court erred (1) by finding her responsible for appellees’ attorneys’ fees, and (2) by requiring her to pay appellees’ attorneys’ fees into the registry of the trial court as a condition precedent to having her special equity applied as a credit on her bid at a court sale of the property. Appellant’s points on appeal are well taken. Sections 64.071 and 64.081, Florida Statutes (1977), set forth the procedures to be used in partition cases. Pursuant to these Sections, we believe that it was error for the trial court to require appellant to pay all of the attorneys’ fees in the cause and, also, error to require such fees to be placed into the registry of the trial court prior to a sale of the property. See McQueen v. Forsythe, 55 So.2d 545 (Fla. 1951); Adler v. Schekter, 197 So.2d 46 (Fla. 3d DCA 1967); and Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). Therefore, paragraphs 4, 5, 6, and 7 of the final judgment of partition are quashed and the cause is remanded for further proceedings in the trial court. Quashed in part and remanded.