Current Legal Issues

Pleading Attorneys Fees

Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). In Stockman, the Florida Supreme Court considered the following question certified by the Fourth District Court of Appeal7 to be of great public importance: “May a prevailing party recover attorneys’ fees authorized in a statute or contract by a motion filed within a reasonable time after entry of a final judgment, which motion raises the issue of that party’s entitlement to attorneys’ fees for the first time?

            The case involved a contract which provided for an award of attorneys’ fees to the prevailing party. The defendants had requested no affirmative relief in their answer. After a verdict in favor of the defendants was returned, the trial court entered a final judgment which retained jurisdiction for the taxation of costs and award of fees. The day after the final judgment was entered, the defendants filed a motion for fees based on the terms of the contract. The trial court denied the motion because the defendants had not requested fees in their pleadings, and because there had been no acquiescence during the pre-trial stage of the case. The Fourth District Court of Appeal reversed the order denying fees.9 It concluded that it was not inappropriate to raise a claim for attorneys’ fees for the first time after judgment because a claim for attorneys’ fees is a collateral and independent claim.10

            The Supreme Court quashed the district court’s decision, answering the certified question in the negative. The court concluded that the better view is that a claim for fees, whether based on statute or contract, must be pled.The court stated:

The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. 40 Fla. Jur. 2d Pleadings §2 (1982). Raising entitlement to attorney’s fees only after judgment fails to serve either of these objectives. The existence or nonexistence of a motion for attorney’s fees may play an important role in decisions affecting a case. For example, the potential that one may be required to pay an opposing party’s attorney’s fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle. A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him. Accordingly, we hold that a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim. Stockman, 73 So. 2d at 837-38 (footnotes omitted).

Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992). In Ganz, the court considered the following certified question: “Does the holding in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) require that entitlement to statutory attorneys’ fees pursuant to Section 57.105, Florida Statutes (1991) be specifically pled?”Ganz, 605 So. 2d at 872

The court observed that it was difficult for a party to plead in good faith before the case has ended that there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party. Quoting Autorico, Inc. v. GEICO, 398 So. 2d 485 (Fla. 3d DCA 1981), the court said that it is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues. The certified question was answered in the negative.

Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver…Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived. Green, 730 So. 2d at 1262-63.

Dealers Insurance Co. v. Haidco Investment Enterprises, Inc., 638 So. 2d at 127, specifically found that a general request for fees in the “wherefore” clause is not sufficient.Dealers Insurance Co., 638 So. 2d at 129-30.

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As with attorneys’ fees at the trial level, attorneys’ fees cannot be awarded at the appellate level unless authorized by contract, statute, or other substantive legal basis. Whether grounded in contract or statute, the vast majority of fee awards are based on the prevailing party, and the moving party must generally prevail both in the appeal and ultimately in the action to recover appellate attorneys’ fees.

Claim for reimbursement of costs on appeal:

Unlike a motion for appellate attorneys’ fees, a motion for appellate court costs is filed in the lower tribunal. In fact, a motion for appellate attorneys’ fees should not include a request for appellate court costs.12 Rule 9.400(a) provides that appellate court costs “shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” This time limit is jurisdictional, and the lower tribunal lacks authority to entertain an untimely motion to tax appellate court costs. Mulato v. Mulato, 734 So. 2d 477, 478 (Fla. 4th DCA 1999).