Defendant’s request for attorney’s fees within its summary judgment motion is insufficient to place plaintiff on notice that defendants are claiming attorney’s fees.

On February 6, 2024, the Fifth Circuit Court in Hernando County, Florida, rendered a decision regarding a prevailing defendant’s request for attorney’s fees within a motion for summary judgment. The court found that the defendant’s request for attorney’s fees within the summary judgment motion was insufficient to place the plaintiff on notice that the defendants were claiming attorney’s fees.

Notably, the defendant did not file an answer to the lawsuit filed by the plaintiffs, instead, opting to proceed directly to filing a motion for summary judgment with a request for attorney’s fees. As there was no responsive pleading filed in the case, the summary judgment motion was the first instance where the defendant raised the issue of attorney’s fees. The next day, the plaintiffs filed a notice of voluntary dismissal with prejudice and further released its construction lien that was the subject of the lawsuit. Subsequently, the defendants filed a motion to award attorney’s fees pursuant to § 713.29, Florida Statutes.

The trial court recognized the precedent established in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), which found that a claim for attorney’s fees, whether based on contract or statute, must be pled and failure to comply constitutes a waiver of the claim. Id. at 838. “The purpose of the pleading requirement is notice—by pleading a claim to attorney’s fees, a party notifies the opposing party of the claim and prevents unfair surprise.” Sardon Found v. New Horizons Serv. Dogs, Inc., 85 So. 2d 416 (Fla. 5th DCA 2003). Florida courts have specifically recognized that setting forth a claim for attorney’s fees in a motion for summary judgement does not satisfy the requirements of Stockman. See, Taylor v. T.R. Properties, Inc. of Winter Park, 603 So. 2d 1380 (Fla. 5th DCA 1992).

In this decision, the Fifth Circuit Court continues to uphold an often forgotten procedural requirement regarding notice. While the words “pleading” and “motion” are habitually used interchangeably, a motion is not a pleading, and parties must carefully ensure that proper pleadings have been filed for the case to be at issue. 

_{Legal Update for Florida Coverage & Property Litigation – June 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}