Wunderle v. Fruits, Nuts & Bananas, Inc., 97-00465
| Decision Date | 24 July 1998 |
| Docket Number | No. 97-00465,97-00465 |
| Parties | 23 Fla. L. Weekly D1721 John WUNDERLE and Margaret Wunderle, Appellants, v. FRUITS, NUTS & BANANAS, INC., Danny Darrell Moose, Deanne Christine Moose, and Ron F. Smith, Appellees. Second District |
| Court | Florida District Court of Appeals |
Thomas G. Hersem, Clearwater, for Appellants.
Bruce R. Young and Patrick A. Davis, Clearwater, for Appellees.
The appellants, John and Margaret Wunderle, challenge the trial court's order awarding attorney's fees in favor of the appellees, Fruits, Nuts & Bananas, Inc., et al., contending the appellees' pleadings failed to legally raise the issue of attorney's fees and the motion for attorney's fees was unduly delayed by having been filed approximately two months after the jury verdict. We agree and reverse.
In 1992, the appellants filed a complaint seeking damages for the appellees alleged default in payment of a promissory note. The note contained a provision for the award of attorney's fees. The appellees filed an answer to the appellants' complaint, raising affirmative defenses along with the issue of fraud, which would render the note null, void, and unenforceable. This responsive pleading did not contain a request for attorney's fees.
Subsequently, the appellees filed an unsigned motion to amend their answer, affirmative defenses, and counterclaim. The proposed unsigned pleading contained a request for attorney's fees, in the wherefore clause of the pleading, without reciting a legal basis for the request.
On April 19, 1996, the appellees recovered a jury verdict which nullified the promissory note. Thereafter, on June 20, 1996, and July 12, 1996, the appellees filed their motion for attorney's fees and award of costs, which the trial court granted after two hearings. The appellants filed a timely notice of appeal from the trial court's order awarding attorney's fees in favor of the appellees.
The appellants contend that the trial court erred in awarding attorney's fees because the appellees failed to properly plead the attorney's fees issue and because they waited two months before filing their motion for attorney's fees. We agree that the trial court erred by awarding the appellees' attorney's fees.
This case is controlled by the holding in Stockman v. Downs, 573 So.2d 835 (Fla.1991). The Florida Supreme Court held that, Stockman, 573 So.2d at 837 (footnote omitted). The court went on to recognize an exception to this requirement by stating that if a party has notice that an opponent claims entitlement to attorney's fees and by its conduct acquiesces or fails to object to that claim,...
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...by the Shipleys' delay in filing a post-judgment fees and costs motion. Relying on this court's opinion in Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998), Belleair claims that the Shipleys' delay in filing the motion for almost eighty days after the final judgmen......
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...See Falls; USF & G; McAskill; Swortz v. S. Rainbow Corp., 603 So.2d 107 (Fla. 3d DCA 1992); see also Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998). Notwithstanding, whether reviewed de novo or for an abuse of discretion, the order on JBE's motion for attorney's ......
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...fees does not provide a sufficient basis for a fee award. Stockman v. Downs, 573 So.2d 835 (Fla.1991); Wunderle v. Fruits, Nuts and Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998); Dealers Ins. Co. v. Haidco Inv. Enterprises, Inc., 638 So.2d 127 (Fla. 3d DCA 1994). In order to be entitled t......
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...is on notice that the prevailing party will seek such fees after the conclusion of the litigation. See Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325, 325-26 (Fla. 2d DCA 1998) (reversing an award of attorney's fees to the party that successfully sued for default on a promissory no......
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...after the jury verdict was held not to have been filed within a reasonable time period in Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d D.C.A. 1998). See also McAskill Publications, Inc. v. Keno Brothers Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th D.C.A. 1994) (suggest......