Cooper v. Jensen

903 So. 2d 273, 2005 Fla. App. LEXIS 8133, 2005 WL 1278780

• Court: District Court of Appeal of Florida
• Decided: June 1, 2005
• Docket: No. 3D04-507
• Status: Published

Opinion

PER CURIAM.

Lance Cooper appeals a final judgment after jury trial in an action brought by Gitte Jensen to recover monies loaned to Cooper. We affirm.

The burden to establish the defense of payment remained on Cooper and the trial court correctly so instructed the jury. See Knauer v. Levy, 115 So.2d 776, 777 (Fla. 3d DCA 1959); see also Public Health Trust of Dade County v. Holmes, 646 So.2d 266 (Fla. 3d DCA 1994).

As to the claim for attorney’s fees, the record supports the trial court’s finding that the later-executed notes memorialized the parties’ agreement and the notes included a fees provision. Alternatively we accept Jensen’s claim to fees under the “tipsy coachman” rule. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999).

Affirmed.