Arbitration & Mediation

Fourth DCA Revisits the "Stockman Rule" on Failure to Plead Claim for Attorney's Fees

By Christopher B. Hopkins, Esq.

A frequent battle among litigants is whether there is a contractual or statutory basis for attorney's fees -- and then whether the prevailing party actually plead a claim for fees.

In Save On Cleaners of Pembroke II Inc v. Verde Pines City Center Plaza, LLC, the parties battled over an alleged breach of a commercial lease which included an attorney fee provision for the prevailing party. In this case, the defendant prevailed but the plaintiff claimed they had not properly plead entitlement to fees. The Panel (Farmer, Ciklin and Leban) disagreed.

The defendant had filed a motion to dismiss and claimed fees -- while that motion had been "abandoned," it apparently was not withdrawn, nor was there a withdrawal of the claim for fees. Likewise, the defendant pointed to instances where it sought fees, thereby putting the plaintiff on notice, in their opposition to default, settlement offer, trial brief, and proposed final judgment.

The court held that this was a legal issue (not reviewed by an "abuse of discretion standard") and that, under the 1991 Florida Supreme Court case of Stockman v Downs, "where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection or failure to plead a claim for attorney's fees." The Panel determined that the "Stockman Rule" plainly was geared towards requiring putting the opposing party on formal notice; that opposing party should likewise object if an adversary claims fees without prior notice.

The reasoning is based, in part, on Florida Rule of Civil Procedure 1.190(b) which involves trying issues by express or implied consent.

Full post as published by Florida Arbitration Law on September 21, 2009 (boomark / email).