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Entitlement to Attorney’s Fees in Trust Contest Must Be Properly Plead

A claim for attorney’s fees must be properly pled. Regardless of whether the claim is based on statute or contract, failure to plead a claim for attorney’s fees constitutes a waiver of the claim. In order to satisfy this pleading requirement for an entitlement to attorney’s fees, the pleading must occur in a pleading contemplated by the Florida Rule of Civil Procedure 1.100(a). 

In Nathanson v. Morelli (Fla. 4th DCA July 8, 2015), the Court held that a party must plead an entitlement to attorney’s fees in a civil action, there a trust contest.  In this trust contest, plaintiffs filed a complaint regarding trust assets.  Defendant moved to dismiss and requested attorney’s fees.  The motion to dismiss was not set for hearing and discovery proceeded. No answer was ever filed by the defendant.  Ultimately, the parties filed cross-motions for summary judgment.  Defendant prevailed on his summary judgment motion, which requested fees. 

Defendant then filed a motion for attorney’s fees which was met with a motion to dismiss/strike by the plaintiffs.  The trial court denied the defendant’s motion for attorney’s fees finding that he had failed to file a “pleading” containing a request for fees precluded him from entitlement.

The Court reiterated the above requirements that a failure to plead such an entitlement constituted a waiver.  Two main exceptions to this rule exist.

The first exception to the pleading requirement is where a party has notice that an opponent claims entitlement to attorney’s fees and either, by its conduct, acquiesces, ratifies or fails to object to the failure to plead entitlement.  In that case, the party who failed to object waives the opportunity to do so.

The second exception is for cases that are dismissed prior to filing an answer.  A claim for attorney’s fees by a defendant is made in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following dismissal of the action.  When a claim for attorney’s fees is not made within this time period the claim is waived.

Here, the Fourth District found that both exceptions were applicable.  As an initial matter, the defendant/Appellant, made multiple requests for attorneys’ fees in multiple filings.  These multiple requests were never objected to by the plaintiffs, in turn waiving the opportunity to object.  In addition, defendant’s motion to dismiss had not been heard and remained pending at the time summary judgment was entered in his favor.  Therefore, the Fourth District held that defendant/Appellant raised his claim for fees while “the time period to answer the complaint ha[d] not yet matured.” (quoting Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1261 (Fla. 1998). 

The Court reverses the lower court’s order striking defendant’s motion for fees and remanded the case.  It was error to find that defendant had waived his claim for an award for attorney’s fees.  It was clear from this decision, that the defendant’s motion to dismiss the trust contest, his motion for summary judgment, and what amounted to several other pleadings in the underlying action satisfied the pleading requirement for an entitlement to an award of attorney’s fees. 

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