LAGUNA PALMS PROPERTIES LTD., ETC., APPELLANT,
v.
JOLENE LONG, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Defendant prevailing party in tort action cannot recover attorney's fees because plaintiff abandoned the statutory claims under F.S. 723.058 and defendant failed to request fees in its answer.
A prevailing party cannot recover attorney's fees under F.S. 723.058 when the plaintiff abandons the statutory claims and the defendant fails to request fees in its answer.
[1] Attorney's fees under F.S. …
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePlaintiff filed two complaints seeking damages under F.S. 723.058, which were dismissed. Plaintiff then filed a third amended complaint as a simple to…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Pleading Requirement For Attorney'S Fees cases and more on FLexlaw
PER CURIAM.
The defendant appeals the denial of its motion for attorney’s fees. In the order the trial court found and held:
Plaintiff originally filed two complaints seeking damages pursuant to F.S. 723.- 058. Defendant’s motion to dismiss these complaints were granted. The third amended complaint did not seek damages under said statutes, but was a simple tort action for tortious interference.
Defendant filed an answer with no request for attorney’s fees. Thereafter, plaintiff took a voluntary dismissal.
The court has determined that defendant was the prevailing party. However, the court finds no basis to award attorney’s fees.
I. The action was not based on F.S. 723.058, these complaints having been abandoned by plaintiff. Therefore, there is no basis for defendant to claim fees.
II. If in fact the action was based upon F.S. 723.058, defendant failed to seek fees in its answer. Stockman v. Downs, 573 So. 2d 835 (Fla.1991); Swortz v. Southern Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992).
We agree with the trial court, and further find no additional factors such as acquiescence or misleading conduct that raise equitable considerations which might support an exception to the pleading requirement relied upon below. See Max Dial Porsche Audi, Inc. v. Kushner, Inc., 596 So. 2d 156 (Fla. 4th DCA), review denied, 605 So. 2d 1264 (Fla.1992). Accordingly, the order under review is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Marcio Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799 (Fla. 3d DCA 1998)…nduct recognized or acquiesced to that claim, or otherwise failed to object to the failure to plead entitlement, and thus waived any objection to the failure to plead a claim for attorney’s fees. Id.; see also, Laguna Palms Properties, Ltd. v. Long, 622 So. 2d 556, 557 (Fla. 3d DCA 1993). Moreover, Sopeña is entitled to attorney’s fees as the prevailing party under the employment contract. “In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Thornber v. City…
-
Tampa Letter Carriers, Inc. v. Mack, 649 So. 2d 890 (Fla. 2d DCA 1995)…instead by motion filed after appellee, Carrie Mack, filed a notice of voluntary dismissal without prejudice. We reverse. Appellee and the trial judge relied on Stockman v. Downs, 573 So. 2d 835 (Fla.1991) and Laguna Palms Properties Ltd. v. Long, 622 So. 2d 556 (Fla. 3d DCA 1993) for the proposition that an award of statutory or contractual attorney's fees must be based upon’ a request for such fees made in the pleadings and not by motion after judgment or dismissal. However, our supreme court in Ganz v. H…
-
Bruce v. Barcomb, 675 So. 2d 219 (Fla. 2d DCA 1996)…file an answer. On the other hand, where prior to the filing of a voluntary dismissal a defendant has filed an answer with no request for attorney’s fees, the defendant has waived entitlement to attorney’s fees. Laguna Palms Properties Ltd. v. Long, 622 So. 2d 556 (Fla. 3d DCA 1993). The third issue centers on the basis for awarding attorney’s fees, which was contractual. Only two contract provisions address attorney’s fees, and neither of them was viable so as to effectuate fees in this case. Those two prov…
Authorities Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Swortz v. S. Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992)
- MAX Dial Porsche Audi, Inc. v. Kushner, Inc., 596 So. 2d 156 (Fla. 4th DCA 1992)
- Woods v. State, 596 So. 2d 156 (Fla. 4th DCA 1992)