OCALA MUSIC & MARINE CENTER, APPELLANT,
v.
HAROLD D. CALDWELL, APPELLEE
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A party is not required to plead for statutory attorney's fees, even if it is the better practice.
Ocala Marine was the prevailing party on a deceptive trade practices claim but was denied attorney's fees by the trial court for failing to plead them…
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COBB, Judge.
Caldwell sued Ocala Music & Marine Center, Inc. (hereafter Ocala Marine) for fraud and for deceptive trade practices1 relating to an outboard motor. The complaint included a plea for the statutory attorney’s fees provided for by the Deceptive And Unfair Trade Practices Act.2 Ocala Marine answered without requesting any statutory attorney’s fees. It subsequently filed a counterclaim for quantum meruit that included a prayer for attorney’s fees in the absence of any justiciable issue.3
A judgment was rendered in favor of Ocala Marine on the complaint and in favor of Caldwell on the counterclaim. Although Ocala Marine was the prevailing party on the deceptive trade practices claim, the trial court did not award it any attorney’s fees on the ground that Ocala Marine had failed to plead for attorney’s fees. Ocala Marine appeals.
According to our Florida Supreme Court, although it is the better practice to plead attorney’s fees, a party is not required to plead them where they are allowed by statute. Washington v. Rogers, 201 So. 2d 636 (Fla. 4th DCA 1967), cert. denied sub nom., Prudence Mut. Cas. Co. v. Washington, 211 So. 2d 556 (Fla. 1968); New Amsterdam Cas. Co. v. James, 122 Fla. 710, 166 So. 813 (1936); National Benefit Life Ins. Co. v. Brown, 103 Fla. 758, 139 So. 193 (1931).4
Therefore, we reverse that portion of the final judgment that denied Ocala Marine attorney’s fees. We remand this case to the trial court for a proper determination and award of those fees.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur. . § 501.201, Fla.Stat. (1977), et seq.
. § 501.210, Fla.Stat. (1977).
. § 57.105, Fla.Stat. (Supp. 1978).
. Contra, Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977); Price v. Boden, 39 Fla. 218, 22 So. 657 (1897); 12 Fla.Jur.2d Costs § 31 (1979); The Florida Bar, “Florida Civil Practice Damages” § 9.8 (2d ed. 1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)…appeal have held that it is unnecessary to plead for attorney’s fees authorized by statute, Miami Lincoln Mercury, Inc. v. Kramer, 399 So. 2d 1003 (Fla. 3d DCA), review dismissed, 408 So. 2d 1094 (Fla. 1981); Ocala Music & Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980); Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967), cert. denied, 211 So. 2d 556 (Fla.1968), but that attorney’s fees sought pursuant to contract must be pled. E.g., Millard v. Brannan, 553 So. 2d 1248 (Fla. 2d DCA 1989);…
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Brown v. Gardens BY THE SEA S. Condo. Ass'n, 424 So. 2d 181 (Fla. 4th DCA 1983)…statute. Miami Lincoln Mercury, Inc. v. Kramer, 399 So. 2d 1003 (Fla. 3d DCA 1981) upheld appellant’s entitlement to attorneys fees in an action brought under Section 817.41(6), Florida Statutes (1979) and Ocala Music and Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980) permitted the award of attorneys fees to a prevailing party in an action brought under Section 501.210, Florida Statutes (1977).…1 / 2
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Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983)…y authority for attorney’s fees and neither involved contract provisions for same. However, as the majority in the Gardens opinion pointed out, that distinction may not have [*966] been meaningful. See also Ocala Music and Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980). What is inescapably meaningful, is that even this court has approved presentation of proof concerning attorney’s fees after judgment despite the absence of a stipulation to do so. True, none of our cases are on all fours and al…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977)
- Price v. Boden, 39 Fla. 218 (Fla. 1897)
- The Nat'l Benefit Life Ins. Co. v. Ansel L. Brown, 103 Fla. 758 (Fla. 1931)
- New Amsterdam Cas. Co. v. James, 122 Fla. 710 (Fla. 1935)
- Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967)
- DI Virgilio v. State Rd. Dep't of Fla., 211 So. 2d 556 (Fla. 1968)
- Prudence Mut. Cas. Co. v. Washington, 211 So. 2d 556 (Fla. 1968)