Stok + Kon, P.A. v. Miami Dade College
3d DCA, 3/27/24
No. 3D23-0190, 2024 WL 1289870
Per Curiam
Topics: Attorneys’ Fees
Quick Take: The Third DCA affirmed a trial court’s order awarding statutory fees and costs to Miami-Dade College even though the college failed to plead entitlement to fees. The failure to plead was excused by the exception to the pleading requirement established in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), which held that if a party fails to plead entitlement to fees but raises the issue in another way and the opposing party doesn’t object, the court can award fees.
Full Take: Miami-Dade College forgot to plead entitlement to attorneys’ fees and costs, but then, after it won a case, it moved for—and the trial court awarded—fees and costs. The appellate court affirmed, agreeing with the trial court that the exception to the pleading requirement established in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) is applicable.
So what is that exception? A claim for attorney’s fees, whether based on statute or contract, must be pled. There is an exception, however, 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 to the failure to plead a claim for attorney's fees. For instance, if the issue of attorney's fees was raised at pretrial conference and plaintiff's pretrial statement listed defendant's entitlement to fees as an issue or the parties stipulate during trial that the question of attorney's fees would be heard subsequent to final hearing, that would permit recovery of attorney's fees despite failure to plead entitlement to fees. The determining factor is whether, despite a lack of pleading, the opposing party has been placed on notice that the party is claiming fees and cannot claim to be unfairly surprised.