JOHN WUNDERLE AND MARGARET WUNDERLE, APPELLANTS,
v.
FRUITS, NUTS & BANANAS, INC., DANNY DARRELL MOOSE, DEANNE CHRISTINE MOOSE, AND RON F. SMITH, APPELLEES
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The appellants challenged an attorney's fees award granted by the trial court after the appellees prevailed on a fraud defense to a promissory note claim. The court reversed, holding that the appellees failed to properly plead the attorney's fees claim and filed their motion two months after judgment, exceeding a reasonable time period under Stockman v. Downs.
The court reversed the attorney's fees award, holding that the appellees failed to comply with the requirement to plead attorney's fees claims for notice purposes and failed to file their motion within a reasonable time period as required by Stockman v. Downs.
[1] A claim for attorney's fees, whether based on statute or contract, must be pled to provide notice to the opposing party.
[2] A party waives any objection to an opponent's failure to plead a claim for attorney's fees if the party has notice of the claim and acquiesces or fails to object.
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Join FLexlaw to unlock all legal intelligence“a claim for attorney's fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice.”
Establishes the core requirement that attorney's fees claims must be properly pleaded to provide adequate notice to the opposing party.
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Join FLexlaw to unlock all legal intelligenceThe appellants filed suit in 1992 seeking damages for alleged default on a promissory note containing an attorney's fees provision. The appellees rais…
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PER CURIAM.
The appellants, John and Margaret Wun-derle, 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 885 (Fla.1991). The Florida Supreme Court held that, “a claim for attorney’s fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice.” 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, that party waives any objection for failure to plead a claim for attorney’s fees. Stockman, 573 So. 2d at 838. This exception affords the appellees no relief as the evidence does not indicate that the appellants acquiesced to the claim of attorney’s fees or failed to object to it. Additionally, it cannot be said the appellants were put on notice that the appellees would seek attorney’s fees as neither appellees’ pretrial statement nor the pretrial order referenced attorney’s fees.
Stockman also held that proof of attorney’s fees may be presented after final-judgment, upon motion .within a reasonable time. Stockman, 573 So. 2d at 838. Since the appellees did not file their motion until two months after the jury verdict in their favor, we do not find that the motion for attorney’s fees was filed within a reasonable , time period. See also McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994) (stating that a trial court generally should not grant a post-judgment motion for attorney’s fees filed almost three months after the judgment on the merits because of “unreasonable tardiness”).
Since the appellees failed to comply with the pleading dictates of Stockman and also failed to file their motion for attorney’s fees within a reasonable time, we reverse the trial court’s order granting attorney’s fees in favor of the appellees.
Reversed.
PARKER, C.J., and WHATLEY and GREEN, JJ., concur.
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Gulf Landings Ass'n, Inc. v. Hershberger, 845 So. 2d 344 (Fla. 2d DCA 2003)…30 days after the filing of the judgment.” Special rules for such circumstances would simply return the courts to an era in which the time for the filing of these motions would again be uncertain. See, e.g., Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998) (determining whether posttrial motion for attorneys’ fees had been filed within a “reasonable time”). Mr. Hershberger argues that his notice of hearing can be considered a “motion” for the purposes of rule 1.525. Indeed, rule 1.5…
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Shipley v. Belleair Grp., Inc., 759 So. 2d 28 (Fla. 2d DCA 2000)…contains no satisfaction of the judgment. Belleair does not maintain that it suffered any prejudice 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 judgment is unreasonable as a matter of law. The trial court accepted this argument and struck the motion for fees and costs. T…1 / 3
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BAL BAY Realty, Ltd. v. Pepsomers Corp., 833 So. 2d 320 (Fla. 4th DCA 2003)…r attorney’s fees have apparently reviewed the order for legal error, rather than an abuse of discretion. 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 fees should have been denied as untimely.4 Accordingly, the order on appeal granting JBE’s motion for attorney’s fe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tire Kingdom, Inc. v. First S. Ins. Co., 573 So. 2d 885 (Fla. 3d DCA 1990)
- McASKILL Publ'ns, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994)