PROBATE CORNER
Necessity of Pleading Entitlement to Attorney ’ s Fees Under § 733.106 ( 3 ), F . S .
DAVID M . GARTEN
Summary : The case of Carman v . Gilbert and its progeny created an exception to Stockman v . Downs where a party requested attorney ’ s fees pursuant to § 733.106 ( 3 ), F . S . However , this exception was based on the pre-2001 version of this statute . As a result , this exception is of questionable significance to all cases applying the post-2001 version of § 733.106 ( 3 ).
A claim for attorney ' s fees , whether based on statute or contract , must be pled . Failure to do so constitutes a waiver of the claim . See Stockman v . Downs , 573 So . 2d 835 ( Fla . 1991 ). Such pleading must occur in a pleading contemplated by Florida Rule of Civil Procedure 1.100 ( a ). A complaint , answer , and counterclaim are " pleadings ," but not a motion . See Green v . Sun Harbor Homeowners ' Ass ' n , 730 So . 2d 1261 ( Fla . 1998 ). The Stockman court reasoned that “[ t ] he fundamental concern is one of notice . Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise . 40 Fla . Jur . 2d Pleadings § 2 ( 1982 ). Raising entitlement to attorney ' s fees only after judgment fails to serve either of these objectives . The existence or nonexistence of a motion for attorney ' s fees may play an important role in decisions affecting a case . For example , the potential that one may be required to pay an opposing party ' s attorney ' s fees may often be determinative in a decision on whether to pursue a claim , dismiss it , or settle . A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him .”
However , the Stockman court recognize the following exception : “ Where a party has notice that an opponent claims entitlement to attorney ' s fees , and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement , that party waives any objection to the failure to plead a claim for attorney ' s fees . See e . g ., Brown v . Gardens by the Sea S . Condo . Ass ' n , 424 So . 2d 181 ( Fla . 4th DCA 1983 ) ( defendant ' s failure to raise entitlement to attorney ' s fees until after judgment not fatal to claim where issue of attorney ' s fees was raised at pretrial conference and plaintiff ' s pretrial statement listed defendant ' s entitlement to fees as an issue ); Mainlands of Tamarac by Gulf Unit No . Four Ass ' n , Inc . v . Morris , 388 So . 2d 226 ( Fla . 2d DCA 1980 ) ( parties ' stipulation during trial that the question of attorney ' s fees would be heard subsequent to final hearing would permit recovery of attorney ' s fees despite failure to plead entitlement to fees ).” See also Shirley ’ s Pers . Care Servs . Of Okeechobee , Inc . v .
Boswell , 165 So . 3d 824 ( Fla . 4th DCA 2015 ) ( if a party fails to plead for attorney ' s fees but raises the issue in a pretrial statement , the other party must object or it waives the issue of the party ' s failure to plead ; however , the waiver is limited to the terms of the pretrial statement ).
In Carman v . Gilbert , 615 So . 2d 701 ( Fla . 2d DCA 1992 ), the court carved out an exception to Stockman when a party requests attorney ’ s fees pursuant to 733.106 ( 3 ), F . S . The court held that “[ b ] ecause the fees sought were predicated on having provided a benefit to the estate , which could encompass more than merely having defended the petition to revoke probate , and section 733.106 permits an attorney to make such an application at any time during the pendency of the estate , we determine that the petition provided timely notice of the request for fees to all affected parties .”; followed , Lindenmayer v . Harper ( In re Estate of Paris ), 699 So . 2d 301 ( Fla . 2nd DCA 1997 ); Sharp v . Barreto , 95 So . 3d 321 ( Fla . 3rd DCA 2012 ).
Prior to 2001 , § 733.106 ( 3 ) read : “ Any attorney who has rendered services to an estate may apply for an order awarding attorney fees , and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition .”
In 2001 , paragraph ( 3 ) was amended to read : “ Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate .” As a result of this amendment , the Carman exception is of questionable significance to all cases applying the post-2001 version of § 733.106 ( 3 ). All of the cases citing to
Carman on this issue are based on the pre- 2001 version of this statute .
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