Timing is Everything When it Comes to Recovering Attorneys' Fees

Published January 25th, 2019 by Kai Jacobs

In a previous posting I have answered the question often asked by clients at an initial consultation: “Can I recover my attorney’s fees?”  The answer is, in essence, only if a statute or contract specifically authorizes it.

In those cases where the answer is “yes,” clients and their attorneys have to decide when to make their demand for such a recovery.  In Florida, that decision is informed by a line of cases that should come down in favor of the conclusion that doing so as part of the very first pleading is mandatory.

Generally, “[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 v. Downs, 573 So. 2d 835, 837-38 (Fla. 1991).  “The fundamental concern is one of notice.  Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise.”  Id., 573 So. 2d 837 (citing 40 Fla. Jur. 2d Pleadings §2 (1982)).  “A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him.”  Id.

Florida’s courts view this obligation as one to be strictly met.  In Scruggs v. Sutton, a landlord sued the tenant under Florida’s landlord and tenant statutes for eviction and ejectment from the leased property.  In the pleading, the landlord properly requested attorneys’ fees for evicting the tenant, as was authorized by the statutes.  In response, the tenant sought to deny and prevent the eviction.  In addition, he counter-sued for claims sounding in quiet title and the imposition of a constructive trust.  In connection with the constructive trust claim, the tenant asked for attorneys’ fees as part of his initial pleading.  The tenant did not ask for recovery of his attorneys’ fees as part of his defense of the eviction claim.

At trial, the tenant prevailed on the eviction and his constructive trust claim and was awarded his attorneys’ fees.

Florida’s Third District Court of Appeal ultimately reversed that decision based upon the parameters set out in Stockman.  A party is obligated to plead its entitlement to attorneys’ fees, which means that it not only has to be pled but it has to be done so correctly.  The idea that the landlord was on notice of the tenant’s intention to recover fees because the landlord sued for eviction and asked for attorneys’ fees was rejected as a basis to circumvent the rule laid out in Stockman.  The court also rejected the idea that the tenant gave sufficient notice of his intent to seek recovery of attorneys’ fees because he asked for them in connection with his counterclaim for the imposition of a constructive trust.  “Attorney’s fees are not recoverable in an action for a resulting trust.  The fact that Sutton requested fees in his count for a resulting trust is insufficient to support an award of fees under section 83.48 for defeating the eviction action.”  970 So. 2d 853, 855 (Fla. 3d DCA 2007).

So, even with a statute spelling out a prevailing party’s right to the recovery of attorneys’ fees and one party’s express inclusion of a request for such recovery as part of its claim or defense does not absolve the adverse party of the obligation to, similarly, request the recovery of fees as part of its initial pleading.

The same level of strictness applies to claims involving parties who litigate over a contract that includes a specific prevailing party attorney’s fees clause.  In Am. Express Bank Int’l v. Inverpan, S.A., an account holder sued American Express to gain access to certain account records.  The contract governing the account included a prevailing party attorney’s fees provision.  As part of the complaint, the plaintiffs alleged that they were required to hire and pay attorneys to bring their suit but did not expressly state that their account agreement with American Express authorized the recovery of their attorneys’ fees or otherwise ask for such recovery.  Ultimately, the account holder prevailed on the merits and filed a motion asking the court to award attorneys’ fees.  

Although the trial court granted that motion and awarded fees, the Third District Court of Appeal reversed the decision, holding that the account holder “waived its claim for attorney’s fees.”  972 So. 2d 269, 271 (Fla. 3d DCA 2008).  Again, relying on the parameters set out in Stockman, the court reasoned that a claim for attorneys’ fees has to be pled or it is waived.  The court specifically found that alleging an obligation to pay one’s own counsel is insufficient to be considered a specific plea for the recovery of attorneys’ fees, as is a motion filed later in the case that contains a request to such recovery. 

So, as in cases where a statute governs the entitlement to recover fees, those involving a contractual right require the party in litigation to specifically plead an entitlement to recovery as part of the initial pleading in the suit or lose that right.

Lawsuits are full of similar pitfalls and easily-missed opportunities and obligations that can impact a party’s rights.  If you have questions or want to know more, please contact us at us at or call us at 305-768-9846.

‹ Back