HEARTLAND FERTILIZER COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
RUENN HWA CARPENTER, APPELLEE
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Affirmed that a personal guaranty was unenforceable against the individual defendant, but reversed the award of attorney's fees because the defendant failed to plead entitlement to fees and was not a party to the guaranty agreement containing the fee provision.
A personal guaranty is unenforceable against an individual who was not a party to the agreement, and attorney's fees cannot be awarded based on a contract provision when the claimant is not a party to that contract.
[1] A claim for attorney's fees, whether based on statute or contract, must be pleaded in the complaint, answer, or counterclaim, and failure to do so waives the claim.
[2] An individual who is not a party to a contract cannot enforce or rely upon provisions of that contract, including attorney's fee provisions, in litigation.
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Join FLexlaw to unlock all legal intelligenceHeartland Fertilizer Company sued Ruenn Hwa Carpenter to enforce a personal guaranty. The trial court found the guaranty unenforceable against Carpent…
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WHATLEY, Judge.
Heartland Fertilizer Company appeals a final judgment and an award of attorney’s fees entered in favor of Ruenn Hwa Carpenter in Heartland’s action to enforce a personal guaranty. We affirm the final judgment, as we agree with the trial court that the guaranty was not enforceable against Carpenter, individually. However, we reverse the award of attorney’s fees.
We conclude that the award of attorney’s fees must be reversed for two reasons. First, Carpenter failed to plead entitlement to attorney’s fees. See Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1263 (Fla.1998) (“Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). A motion to dismiss is not a pleading.”); Stockman v. Downs, 573 So. 2d 835, 837 (Fla.1991) (holding that “a claim for attorney’s fees, whether based on statute or contract, must be pled” and that the failure to do so waives such claim); see also Bruce v. Barcomb, 675 So. 2d 219, 221 (Fla. 2d DCA 1996). Second, Carpenter’s motion for attorney’s fees was premised upon the attorney fee provision set forth in the guaranty agreement. Since Carpenter, individually, was not a party to the guaranty agreement, she cannot use that agreement to seek fees.
Accordingly, we affirm the trial court’s order finding that Carpenter has no individual liability in this cause, and we re verse the award of attorney’s fees to Carpenter. Affirmed in part, reversed in part.
ALTENBERND and STRINGER, JJ., Concur.
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Sardon Found. v. NEW Horizons Serv. Dogs, Inc., 852 So. 2d 416 (Fla. 5th DCA 2003)…r but did not include a claim for attorney’s fees in that pleading. New Horizon never requested fees until its motion for attorney’s fees, filed a year later in January 2002. A motion is not a pleading. Green; Heartland Fertilizer Co. v. Carpenter, 827 So. 2d 1103 (Fla. 2d DCA 2002). Since New Horizons never filed a pleading containing a request for attorney’s fees, New Horizons failed to plead entitlement to attorney’s fees and thus waived any claim it had for attorney’s fees. Heartland Fertilizer. New Hori…
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N.S. v. Dep't of Child. & Families, 119 So. 3d 558 (Fla. 5th DCA 2013)…l-settled that “[a] motion is not a pleading.” Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So. 2d 416, 421 (Fla. 5th DCA 2003) (citing Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261 (Fla. 1998); Heartland Fertilizer Co. v. Carpenter, 827 So. 2d 1103 (Fla. 2d DCA 2002)); see also Fla. R. Civ. P. 1.100(a) (distin guishing the documents that constitute pleadings and noting that “[n]o other pleadings shall be allowed”). In the present case, we do not need to go any further than the language of the…
Authorities Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Green v. SUN Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998)
- Brown v. State, 675 So. 2d 219 (Fla. 5th DCA 1996)