Dr. Gail Van Diepen, P.A. v. Brown, 55 So. 3d 612

This is the second appellate review of an attorney’s fees award in a Fair Labor Standards Act case where plaintiffs Brown and Romagosa prevailed on overtime claims.
The initial trial court awarded about $72,000 in fees but failed to separate hours attributable to overtime claims, warranting reversal in Van Diepen I.
On remand, the trial court again failed to allocate hours between overtime and other claims, and awarded a fee higher than before.
This court held that the fee award was excessive and again reversed, remanding with instructions to deny fees for the appellees.
There is an affirmative burden on the fee movant to allocate fees to the recoverable overtime claim; vague or incomprehensible records prevent fee recovery.
Multiple Florida authorities require proportional allocation of fees when multiple distinct claims exist, unless they are so intertwined that allocation is infeasible.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the fee award abused discretion due to failure to separate overtime hours.	Brown/Romagosa argued hours related to overtime were separable and should be allocated.	Van Diepen, P.A. contended all claims were intertwined and allocation was not feasible.	Yes; trial court abused discretion by not separating overtime hours.
Whether the court should apply de novo review to separability of multiple claims as a matter of law.	Overtime claims were separable and must be allocated under law.	Claims were intertwined; allocation not feasible.	De novo review required for separability; issues deemed separate and distinct as a matter of law.
Who bears the burden to allocate fees among multiple claims.	Movant bears affirmative burden to demonstrate the portion attributable to the recoverable claim.	Allocation is not feasible due to intertwined records.	The movant bears the burden; if not allocable, fees should not be awarded.
Is it acceptable to deny fees where records are vague or incomplete.	Even with imperfect records, some allocation can be shown.	Inadequate records justify denying fees.	Yes; vague or incomprehensible charges should not be awarded.
Should the remand include specific instructions to separate overtime-related hours.	Remand should permit additional evidence to allocate overtime hours.	Remand to allow proper separation as directed by prior opinion.	Remand with instructions to deny attorney’s fees for appellees.

Rockledge Mall Assoc., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558 (Fla. 5th DCA 2001) (affirmative burden to allocate fees to the recoverable claim)
Plapinger v. Eastern States Properties Realty Corp., 716 So.2d 315 (Fla. 5th DCA 1998) (demonstrate what portion of time devoted to contract claim)
Crown Custom Homes, Inc. v. Sabatino, 18 So.3d 738 (Fla. 2d DCA 2009) (burden to allocate fees or show infeasibility)
Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513 (Fla. 3d DCA 2006) (affirmative burden to demonstrate portion of effort attributable)
Lubkey v. Compuvac Sys., Inc., 857 So.2d 966 (Fla. 2d DCA 2003) (allocation required; some intertwined issues require separation)
Salisbury v. Spielvogel, 451 So.2d 974 (Fla. 4th DCA 1984) (fee allocation principles in multi-claim actions)
United Servs. Auto. Ass’n v. Kiibler, 364 So.2d 57 (Fla. 3d DCA 1978) (allocation principles for attorney’s fees)
Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994) (abuse of discretion standard for fee awards)
Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169 (Fla. 4th DCA 2002) (de novo review for whether multiple claims are separate and distinct)
Van Diepen, Patricia Gail, P.A. v. Brown, 976 So.2d 38 (Fla. 5th DCA 2008) (reversed fee award for lack of specific reasonableness findings)