Downs v. Stockman

• Decision Date: 25 October 1989
• Docket Number: No. 88-3043,88-3043
• Citation: 14 Fla. L. Weekly 2494,555 So.2d 867
• Parties: 14 Fla. L. Weekly 2494, 15 Fla. L. Weekly D296 George DOWNS and Regina Downs, Appellants, v. Ann W. STOCKMAN, Appellee.
• Court: Florida District Court of Appeals

Page 867

555 So.2d 867

14 Fla. L. Weekly 2494, 15 Fla. L. Weekly D296

George DOWNS and Regina Downs, Appellants, v. Ann W. STOCKMAN, Appellee.

No. 88-3043.

District Court of Appeal of Florida Fourth District.

Oct. 25, 1989.

On Petition for Rehearing

Jan. 31, 1990.

Harry D. Dennis, Jr., Pompano Beach, for appellants.

Richard F. Hussey, Fort Lauderdale, for appellee.

PER CURIAM.

The order denying appellants' post-judgment motion for allowance of prevailing party attorney's fees, as provided in the contract between the parties, is reversed upon authority of Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), and Hollander v. Biscayne Cove, 546 So.2d 739 (Fla. 3d DCA 1989), and remanded to the trial court with directions to award attorney's fees to appellants.

DOWNEY and DELL, JJ., and FRANK, RICHARD H., Associate Judge, concur.

ON PETITION FOR REHEARING

DOWNEY, Judge.

The issue in this case was brought here by way of an appeal from a post-judgment order denying Downs' motion for an allowance of attorney's fees as the prevailing party in the litigation. We reversed that order in an opinion wherein we relied upon Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), and Hollander v. Biscayne Cove, 546 So.2d 739 (Fla. 3d DCA 1989).

By petition for rehearing, Stockman contends that two cases from this court, Brown v. Gardens by the Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), and Mechanical Methods Company v. Klein, 535 So.2d 693 (Fla. 4th DCA 1988), required us to affirm the trial court since neither Finkelstein nor Hollander had the effect of reversing or receding from those cases. The issue involved is a recurring one of great public importance, thus we choose now to write an opinion and certify the question for ultimate determination and clarification by the Supreme Court of Florida.

For some years, predating the appearance of "prevailing party" attorney's fees there was a general trend in the jurisprudence of this state holding that attorney's fees could only be recovered if timely pleaded and proven. To some extent recovery of a statutory attorney's fee was not so stringently treated. See Washington v. Rodgers, 201 So.2d 636 (Fla. 4th DCA 1967), cert. denied, 211 So.2d 556 (1968). Nevertheless, there has developed a great deal of confusion as to the procedural requirements necessary in seeking attorney's fees. Must a party plead entitlement and the authority therefor? Must he prove entitlement at trial and if not must the court retain jurisdiction in order to consider them after entry of judgment?

In considering some aspects of the question, this court held in Brown:

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) [rev. denied, 411 So.2d 383] 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 [sic] 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.

424 So.2d at 182-83.

The failure to plead entitlement to fees was not fatal in Brown, however, because the contract for fees was referred to in the record and thus there was no surprise to the other side. That same argument might be made here. Since Stockman claimed attorney's fees pursuant to the parties' contract there could be no surprise where, as the prevailing party, Downs sought attorney's fees.

Nevertheless, we believe the present status of the law is that "prevailing party" attorney's fees provided by statute or contract may be recovered upon timely motion made for the first time after judgment. We draw that conclusion from an analysis of recent cases decided by the Supreme Court of Florida and district court cases commenting thereon.

In Finkelstein, the plaintiffs sought prevailing party attorney's fees in their complaint pursuant to section 768.56(1), but the trial court did not dispose of the request in the judgment, nor did it retain jurisdiction to do so post judgment. In resolving the issue, the supreme court adopted the reasoning of the Supreme Court of the United States in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), wherein it was held that a post judgment claim for attorney's fees made for the first time raises a "collateral and independent" claim, which the trial court has continuing jurisdiction to entertain within a reasonable time after judgment. The court reasoned that since as they say in the current vernacular, "it ain't over 'til it's over," it cannot be known which party will prevail until the claims have been tried and resolved. The delay in claiming attorney's fees until after judgment is not inappropriate.

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