Pleading requirements for a claim for attorneys' fees.

• Author: Pierce, Gerald W.
• Position: Florida

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 Appeal[7] 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...