SYDNEY GOLDFISHER, APPELLANT,
v.
IVAX CORPORATION, PHILLIP FROST, M.D., NEIL FLANZREICH, MARK ANDREWS, ERNST BIECKERT, CHARLES M. FERNANDEZ, JACK FISHMAN, JANE HSIAO, ISAAC KAYE, AND ARMANDO A. TABERNILLA, APPELLEES
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Dr. Goldfisher appealed the trial court's denial of attorney's fees for a shareholder derivative action that successfully resulted in the removal of a "poison pill" clause from IVAX Corporation documents. The court affirmed the denial, holding that attorney's fees must be specifically pleaded and that the action, while producing a common benefit to shareholders, was not frivolous enough to warrant appellate fees under section 57.105.
The court held that attorney's fees, whether based on statute or contract, must be specifically pleaded and failure to do so constitutes waiver. Although the action produced a common benefit to shareholders, the failure to plead fees bars recovery. IVAX is not entitled to appellate fees under section 57.105 because Dr. Goldfisher's action and appeal were not frivolously filed or litigated for purposes of unreasonable delay.
[1] A claim for attorney's fees must be pled to be recoverable, and failure to do so constitutes a waiver of the claim.
[2] A party seeking attorney's fees based on the "common benefit" doctrine must still comply with procedural requirements for pleading such a claim.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[A] claim for attorney's fees, whether based on statute or contract, must be pled. Failure to do so constitutes waiver of the claim.”
Establishes the controlling legal principle that attorney's fees must be explicitly pleaded to be recoverable under Florida law
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Join FLexlaw to unlock all legal intelligenceDr. Goldfisher, a shareholder in IVAX Corporation, brought an action challenging a "dead hand" poison pill clause in IVAX shareholder documents as a v…
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PER CURIAM.
We have before us two requests for attorney’s fees. In the main appeal the trial judge denied stockholder Dr. Sidney Goldfisher’s request for attorney’s fees for his action which ultimately resulted in the removal of a “poison pill” clause from certain IVAX Corporation stockholder documents.1 The trial judge called it a “close call”, but ultimately concluded that while Dr. Goldfisher’s claim did produce action by IVAX benefitting IVAX shareholders, Dr. Goldfisher had failed to request fees and thus could not recover them. We agree.
Dr. Goldfisher cited to case law observing that where a party brings an action producing a “common benefit” to shareholders, it creates a windfall for shareholders if the party precipitating the action is not compensated for his fees, and he maintained that his general claim for relief was a sufficient basis for the fees sought. See Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); see also Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). Ultimately, on the instant facts, the trial judge did not rely on the “common benefit” cases, but rather, relied on general Florida law providing that a claim for attorney’s fees must be pled. See Stockman v. Downs, 573 So. 2d 835, 837-38 (Fla.1991)(“[A] claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes waiver of the claim.”); see also Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999); Dealers Ins. Co. v. Haidco Inv. Enters., 638 So. 2d 127, 130 (Fla. 3d DCA 1994). Accordingly, we affirm that decision.
Here, IVAX seeks appellate attorney’s fees under section 57.105, Florida Statutes (2001). Those same cases providing that a “common benefit” may justify fees combined with the complaint’s arguable claim for relief, support the conclusion that IVAX is not entitled to section 57.105 fees. Dr. Goldfisher was not victorious, however neither his action nor subsequent appeal, were totally without merit. See Concrete & Lumber Enterprises Corp. V. Guaranty Business Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002.) (“The only subsections of section 57.105 which authorize the trial court to award non-contractual attorney’s fees are subsections (1) and (3), which require a finding that the suit was frivolously filed or was litigated for the purpose of unreasonable delay.”)
Accordingly, the main appeal is affirmed, IVAX’s request for appellate fees is denied.
SHEVIN, J., and NESBITT, Senior Judge, concur. . Dr. Goldfisher challenged the “dead hand” pill as a violation of the Florida Business Corporation Act and a ultra vires act of the IVAX board.
SCHWARTZ, Chief Judge
(dissenting in part).
In my opinion, the action brought below by the aptly named plaintiff Goldfisher is an awful example of litigation maintained only for the extortionate purpose of securing attorney’s fees for those who brought it. I would grant the appellee’s motion for its own fees under section 57.105.
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Martin Cnty. Conservation Alliance & 1000 Friends of Fla., Inc. v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011)…opriate only when the action is ‘so clearly devoid of merit both on the facts and the law as to be completely untenable.’ ”) (quoting Brinson v. Creative Aluminum Prods., 519 So. 2d 59, 60 (Fla. 2d DCA 1988)). Similarly, in Goldfisher v. Ivax Corp., 827 So. 2d 1110, 1111 (Fla. 3d DCA 2002), the Third District held that the appellee could not recover appellate attorney’s fees under section 57.105 because, although the appellant “was not victorious ... neither his action nor subsequent appeal, were totally witho…
Authorities Cited
- Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (U.S. 1939)
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Boeing Co. v. VAN Gemert, 444 U.S. 472 (U.S. 1980)
- Gailey Indus., Inc. v. Kulp, 638 So. 2d 127 (Fla. 3d DCA 1994)
- Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999)
- Concrete & Lumber Enters. Corp. v. Guar. Bus. Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002)