Brown v. Gardens by the Sea South Condominium Ass'n

• Decision Date: 05 January 1983
• Docket Number: No. 81-1292,81-1292
• Citation: 424 So.2d 181
• Court: Florida District Court of Appeals
• Parties: John BROWN, Trustee, Rafael Queral, Joseph Manuel Unanue and Edward Abril Lamarque, Appellants, v. GARDENS BY THE SEA SOUTH CONDOMINIUM ASSOCIATION, Jorge Echarte, J.L. Echarte & Sons, Inc., and Peggy Cummins, Trustee, et al., Appellees.

Page 181

424 So.2d 181

John BROWN, Trustee, Rafael Queral, Joseph Manuel Unanue and Edward Abril Lamarque, Appellants, v. GARDENS BY THE SEA SOUTH CONDOMINIUM ASSOCIATION, Jorge Echarte, J.L. Echarte & Sons, Inc., and Peggy Cummins, Trustee, et al., Appellees.

No. 81-1292.

District Court of Appeal of Florida Fourth District.

Jan. 5, 1983.

Thomas R. Tatum and Christine Petersen Tatum of Buck & Tatum, Fort Lauderdale, for appellants.

Harry G. Carratt of Morgan, Carratt and O'Connor, P.A., Fort Lauderdale, for appellee, Gardens By The Sea South Condominium Ass'n.

WALDEN, Judge.

This appeal challenges the denial of appellants' claim for attorney fees in the trial court. We hold that such denial was error and reverse.

The base litigation involved the validity of a long term condominium recreation lease. Appellants, defendants in the trial court, prevailed.

Appellants did not plead their entitlement to attorney fees in their answer and affirmative defenses. The matter of attorney fees was first raised in the appellants' formal pleadings when after judgment they filed their verified motion for attorney fees.

It is axiomatic that attorney fees may be allowed only where authorized by statute or contract. We feel that appellants qualify under either or both avenues.

CONTRACT ENTITLEMENT

The lease which was critically involved in this litigation provided:

XVI. G. If at any time, by reason of the failure of the Lessee to keep and perform any covenant or agreement which under the terms of this Lease the Lessee is bound and obligated to keep and perform, it becomes necessary for Lessor to employ an attorney to protect the rights and interests of the Lessor in the demised premises, or to enforce the terms and provisions of this Lease, or proceed under it in any particular, then in any of such events, the Lessee will owe and will pay unto Lessor all costs of court and reasonable attorney's fees incurred or expended by the Lessor in taking such actions. (emphasis supplied)

Although appellants prevailed in the litigation in chief, the trial court denied their motion for attorney fees, saying:

The court is unable to agree that the intention to claim attorneys' fees may substitute for claiming attorneys' fees; or that it was the intention of paragraph XVI G in the long term lease that the landlord is entitled to attorneys' fees whenever it is necessary to protect its interests. Even if it were, attorneys' fees were not requested in defendants' pleadings.

In our opinion it cannot be seriously contended that appellants were not entitled to an award of attorney fees under the all encompassing terms of paragraph XVI G of the lease and we, therefore, choose not to plumb that aspect or extend this opinion on that account.

As we view it, and as the parties largely argue, the dispositive issue is the effect of appellants failure to initially plead their entitlement to fees.

The overwhelming bulk of the cases hold that it is necessary to request attorney fees in the parties' basic pleadings when claiming under a contract. An exception is Marrero v. Cavero, 400 So.2d 802 (Fla. 3d DCA 1981) where it was stated:

Defendants' entitlement to an attorney's fee based on a contract in evidence was not defeated by failure to plead for same as they presented the issue before the trial court by timely motion made after judgment for the defendants--although it would have been better practice for the defendants to have pled for said attorney's fees in their answer.

Conversely, it is not necessary to so plead entitlement when claiming under a statute. See, for example, Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980).

Everyone agrees, regardless of route, that it would be indeed better practice to plead entitlement to attorney fees in a party's initial pleading.

Upon reflection we can not originate or find a rationale that meaningfully supports the distinction made by the courts between the necessity for pleading entitlement when based on contract vs. statute. We would prefer that the treatment be made uniform, one way or the other. However, mindful of our limited office and the authorities that have long maintained the distinction, we leave such resolution, if it is to be done, to the Supreme Court.

Assuming that the case law requires the claim to be pleaded, in this case, in the appellants' answer and affirmative defenses, and accepting that appellants did not do so, we opine that such failure here was not fatal to their claim based upon these special considerations:

A. There was a colloquy between court and counsel at pre-trial conference as follows:

MR. TATUM: Judge, are we going to decide attorney's fees during the trial? Are we going to go ahead and put that testimony on?

THE COURT: It's up to you.

MR. JOSEPHS: It seems to me that--what I propose is that we resolve that at a later time because it may not be necessary to get into it.

MR. TATUM: That's one group of experts that we wouldn't have to even retain until we see who comes out--who is the prevailing party, Your Honor.

MR. SMITH: I have no objection to doing that.

MR. TATUM: It might save everybody some time.

THE COURT: Jurisdiction will be retained to consider the award of attorney's fees.

B. Appellees' pre-trial statement listed as an issue, "24. Are any of the parties entitled to the recovery of attorney fees and, if so, in what amount."

C. In the final judgment the trial court expressly retained jurisdiction with respect to:

(b) The determination of the entitlement of Defendants for attorney fees and legal expenses pursuant to the provisions of the Long Term Lease, Condominium Documents and applicable Florida law.

D. Thereafter, as stated, appellants filed their Verified Motion for Attorneys' Fees and Costs. Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient. See generally 25 Fla.Jur. Pleadings § 3, 8, and 42.

It is manifest from the foregoing outline of events that appellees and the trial court at all pertinent times knew, recognized and acquiesced, without objection or suggestion of surprise, prejudice or disaccommodation, that appellants were claiming fees and the contract basis for that claim. Moreover, the recognition at pre-trial conference by all involved, including the court, of appellants' claim is a legitimate basis for a finding of waiver or estoppel as concerns appellants' failure to plead. It is fair to speculate that had the appellees or the court expressed any surprise or discontent with the notion that appellants were seeking fees, then certainly appellants would have been galvanized into formally amending and pleading their entitlement. As matters stood, appellants were affirmatively lulled into believing that their claim was known, alive, and that same would be adjudicated. Based on these facts, appellees should not be heard or permitted to now object to appellants' failure to formally plead. (They had filed a motion to strike appellants' verified motion for attorney fees solely on the grounds that appellants had not claimed such fees in their pleadings.)

We hold that the trial court...