Pleading Requirements for a Claim for Attorneys’ Fees
The law regarding the pleading requirements for a claim for attorneys’ fees has evolved substantially in the past decade. Plaintiffs do not seem to have a problem with pleading a claim for fees. The problem area has involved claims by defendants. Under Fla. R. Civ. P. 1.170(a), addressing compulsory counterclaims, the defendant is required to counterclaim for “any claim” against the opposing party arising out of the transaction or occurrence in question. Although it might appear that a “claim” for attorneys’ fees should be controlled by Rule 1.170(a), no court has said that a defendant must file a formal counterclaim to preserve a claim for fees. The Florida Supreme Court has stated that an attorneys’ fee claim is held not to be part of the party’s substantive claim because it is intended only to make the successful party whole by reimbursing it for the expense of litigation.1 A post-judgment motion for fees raises a “collateral and independent claim” which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding the conclusion of the main claim.2
As a practical matter, it is not unusual for an award of attorneys’ fees to exceed the amount otherwise in litigation. A plaintiff who wants to bring a $20,000 claim in a construction contract case or a mechanics’ lien case must seriously consider the fact that a loss may result in the entry of a judgment for fees against the plaintiff for more than the original claim. Yet, neither party is required to plead the most substantial financial issue in the case as a separate claim. Special rules have evolved by case law, and those special rules must be followed. The Rules of Civil Procedure do not reveal the technical requirements for pleading the claim for fees, but a failure to comply with the requirements will result in a waiver of the right to recover fees.
Covering All the Bases
The short answer to the question of how to plead a claim for an award of attorneys’ fees is spelled out by the Second District Court of Appeal in Carman v. Gilbert, 615 So. 2d 701 (Fla. 2d DCA 1992), quashed on other grounds, 641 So. 2d 1324 (Fla. 1994). The court said: “Such pleading must demonstrate: (a) the contractual or statutory basis for an award, (b) why the opposing party should be obligated to pay the award, and (c) the obligation of the moving party to pay his or her attorney.”3
The Third District Court of Appeal has cited Carman v. Gilbert with approval.4 A party who complies with the Carman v. Gilbert analysis will have done everything necessary to raise the issue. Although it may not strictly be necessary, it would not hurt to ask the trial court expressly to reserve jurisdiction for an award of attorneys’ fees in the final judgment.5 Finally, a motion to assess fees which is filed within 30 days of the entry of final judgment should be timely.6
Development of the Pleading Requirements
The last decade has seen numerous appellate decisions addressing the pleading requirements for a claim for attorneys’ fees. The leading case is 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?”8
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.11
In dictum, the court recognized an important exception to the rule it was announcing. It said that a party waives any objection to the failure to plead a claim for fees where that party has notice that an opponent claims entitlement to fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement. The exception was not applicable in Stockman, even though the plaintiff had pled a claim for attorneys’ fees under the same contractual provision. The court concluded that there had been no action or inaction on the part of the plaintiff that could be interpreted to be a recognition of the fact that the defendants intended to claim attorneys’ fees or a waiver of objection to their failure to plead such a claim.
Soon after the Stockman decision, the Supreme Court again addressed this area of the law in 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?”12
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.
The latest case from the Supreme Court addressing this area of the law was Green v. Sun Harbor Homeowners’ Association, Inc., 730 So. 2d 1261 (Fla. 1998). The Fourth District Court had certified that its decision was in conflict with the decision of the Second District Court in Bruce v. Barcomb, 675 So. 2d 219 (Fla. 2d DCA 1996).13 In Bruce v. Barcomb, the Second District Court concluded that the defendant could file a motion for fees following a voluntary dismissal by a plaintiff prior to the time the time the defendant was required to file an answer. In Green, the plaintiff sued the defendant under a “Declaration of Covenants,” which included an attorneys’ fee provision. The complaint included a demand for attorneys’ fees under the contract provision. The defendant responded with a motion to strike and dismiss the complaint. The case sat for a year, and the defendant moved to dismiss for failure to prosecute. The motion to dismiss did not mention attor
Two weeks after the action was dismissed, the defendant moved for attorneys’ fees, arguing that he was the prevailing party. The trial court and the district court ruled that the defendant was not entitled to fees because he had failed to meet the pleading requirements of Stockman. On conflict review, the Supreme Court held that the situation was distinguishable from Stockman. In Stockman the case had proceeded through trial before the defendant moved for fees. In Green, there had been only a complaint and a motion to dismiss before the motion for attorneys’ fees. The case had not proceeded to the point at which the defendant was required to answer. The Supreme Court held:
The Fourth District’s majority decided that when this Court stated in Stockman that a claim for attorney fees must be “pled,” the term was not used in its technical sense and did include motions. This is erroneous. This Court’s use of the phrase “must be pled” is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). A motion to dismiss is not a pleading. 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. However, the failure to set forth a claim for attorney fees in a motion does not constitute 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.14
The decision of the district court was quashed, and the decision of the Second District Court in Bruce v. Barcomb was approved. In a concurring opinion, Chief Justice Harding expressed his concern over the fact that over 15 months had elapsed between the filing of the complaint and the filing of the motion to dismiss. He stressed that future litigants should not be allowed to circumvent the fundamental concerns expressed in Stockman merely because a responsive pleading had not been filed. The concurring opinion urged the Civil Procedure Rules Committee to formulate a workable rule governing claims for attorneys’ fees that would be applicable in this type of situation.
The Supreme Court has not addressed the question of whether a simple demand in the “wherefore” clause in an answer is sufficient to assert a claim for fees. As noted in the beginning of this article, a party who complies with the Carman v. Gilbert ruling would have no problem. In citing Carman v. Gilbert with approval , the Third District Court in 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.15 The First District Court of Appeal has held that a request in the “wherefore” clause which specifically referenced F.S. §57.105(2) (1997) was sufficient to plead a claim for fees under the contract by implication.16 A prudent pleader would avoid potential problems by simply pleading with the specificity required in Carman v. Gilbert.
It appears that no appellate court has addressed the possibility of a defendant moving to amend to assert a claim for fees late in the proceeding. While the ordinary rules regarding the exercise of the trial court’s broad discretion would apply, the trial court would have to give serious consideration to the concerns expressed by the Florida Supreme Court in Stockman. The policy factors which prompted the court to hold that a claim for fees must be pled would also tend to indicate that the claim should be raised early in the proceedings.
Another potential problem area under the holding in Stockman v. Downs is the area of waiver. In Storob v. Sphere Drake Insurance, 730 So. 2d 375 (Fla. 3d DCA 1999), the defendants obtained a judgment which established that the plaintiff insurer had a duty to defend an existing tort claim against them. The trial court denied a motion for attorneys’ fees under F.S. §627.428 (1997) because the defendants had not asserted a claim for fees in any of their pleadings. The Third District Court of Appeal reversed the trial court’s ruling on fees based on a finding of waiver. At the end of the nonjury trial, the trial judge had asked the insurer’s counsel to prepare the final judgment, and counsel had agreed to include a provision that the court reserved jurisdiction as to attorneys’ fees. The court quoted from Stockman v. Downs and concluded that each prerequisite to the waiver exception applied. The appeal would not have been necessary if the defendants had complied with the requirements of Carman v. Gilbert.
The vagueness of the law regarding pleading requirements for claims for attorneys’ fees will result in further litigation. If you follow the requirements in Carman v. Gilbert and file your motion for fees within 30 days of the date the final judgment is filed, you should have no problem avoiding participation in those future cases.
1 Finkelstein v. North Broward Hospital District, 484 So. 2d 1241, 1243 (Fla. 1986).
2 Cheek v. McGowan Electric Supply Co., 511 So. 2d 977, 979 (Fla. 1987).
3 Carmen v. Gilbert, 615 So. 2d at 704 (citation omitted).
4 Dealers Insurance Co. v. Haidco Investment Enterprises, Inc., 638 So. 2d 127, 130 (Fla. 3d D.C.A. 1994).
5 In United States Fidelity & Guaranty v. Martin County, 669 So. 2d 1065 (Fla. 4th D.C.A. 1996), review denied, 679 So. 2d 774 (Fla. 1996), the fact that the trial court had expressly reserved jurisdiction to award fees was an important consideration in the determination that a motion for fees was timely even though it was filed after the conclusion of an appeal from the final judgment. The reservation of jurisdiction to award fees was held to extend the thirty day period for filing a motion for fees pursuant to an offer for judgment in Gulliver Academy, Inc. v. Bodek, 694 So. 2d 675 (Fla. 1997). See also Holm v. Sharp, 715 So. 2d 1159 (Fla. 5th D.C.A. 1998).
6 In Green v. Sun Harbor Homeowners’ Association, Inc., 730 So. 2d 1261, 1263 (Fla. 1988) (quoted infra ), the Supreme Court said that it will require that a defendant’s claim for fees be made either in the motion to dismiss or by separate motion filed within 30 days following dismissal until an appropriate rule is approved. There are no cases which hold that any time period shorter than 30 days is untimely. A motion filed two months after the jury verdict was held not to have been filed within a reasonable time period in Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d D.C.A. 1998). See also McAskill Publications, Inc. v. Keno Brothers Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th D.C.A. 1994) (suggesting that trial courts generally should not grant a post-judgment motion for fees filed almost three months after the judgment on the merits because of “unreasonable tardiness”).
7 Downs v. Stockman, 555 So. 2d 867 (Fla. 4th D.C.A. 1989).
8 Stockman, 573 So. 2d at 836.
10 Id. at 868.
11 Stockman, 73 So. 2d at 837-38 (footnotes omitted).
12 Ganz, 605 So. 2d at 872.
13 Green v. Sun Harbor Homeowners’ Association, Inc., 685 So. 2d 23, 25 (Fla. 4th D.C.A. 1996).
14 Green, 730 So. 2d at 1262-63.
15 Dealers Insurance Co., 638 So. 2d at 129-30.
16 Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137, 140 (Fla. 1st D.C.A. 1999). See also United Pacific Insurance Company v. Berryhill, 620 So. 2d 1077 (Fla. 5th D.C.A. 1993).
Gerald W. Pierce is a board certified appellate practitioner from Fort Myers. He has handled over 500 civil appeals before Florida’s First and Second District Courts of Appeal.
This column is submitted on behalf of the Trial Lawyers Section, Robert F. Spohrer, chair, and D. Keith Wickenden, editor.