4th DCA Erodes “American Rule” on Fees

In law school I was always taught that attorneys’ fees had to be pursuant to statute and contract and the basis had to be plead to put the other side on notice.

In Caufield v. Caufield, 837 So.2d 371 (Fla. 2002), the Florida Supreme Court clarified that when making a claim for attorney’s fees, “the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim”.

So Caufield clarified you do not need to plead the specific basis.

But what happens if a party pleads an erroneous basis for fees? For example, what if someone pleads fees under the inequtiable conduct doctrine, as opposed to… let’s say prevailing party clause?

The 4th DCA answered this question on January 11, 2023, and the answer is… it does not matter! Per the 4th, a party’s pleading requesting fees under an incorrect ground is not fatal to his claim for attorney’s fees.

Is this good law?

[BIAS ALERT: I was one of the attorneys who represented the Appellee, so despite my own thoughts of objectivity, I probably have an inherent bias]

I don’t think so. I think it sets a horrible precedence… respectfully.

What do you think? I would love to hear your thoughts in the comments?

If you are interested in the opinion…..

——

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

District Court of Appeal of Florida, Fourth District.

Thomas MCARDLE, Appellant,
v.
Courtney MCARDLE, Appellee.
No. 4D22-346
[January 11, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Scott Kerner, Judge; L.T. Case No. 50-2018-DR-007572-XXXX-SB (FZ).

Attorneys and Law Firms

Amy Wessel Jones of Shutts & Bowen LLP, Fort Lauderdale, and Jennifer E. Reisler of Shutts & Bowen LLP, West Palm Beach, for appellant.

Gina M. Szapucki and Eddie Stephens of Stephens & Stevens, PLLC, West Palm Beach, for appellee.
Opinion

Levine, J.

The husband moved to compel an inventory of the marital home in accordance with a marital settlement agreement. Due to the wife’s refusal to allow a complete inventory of the home, the husband sought attorney’s fees. The husband based his fee request on section 61.16, Florida Statutes (2021), and the court’s inherent authority under the inequitable conduct doctrine. The trial court took exception to the magistrate’s findings, which had awarded the husband fees under the marital settlement agreement, and held that the husband was not entitled to attorney’s fees. We disagree.

We find that the husband’s citation to section 61.16, instead of the marital settlement agreement, still gave the wife notice that he sought attorney’s fees in this case. We find that, in these circumstances, “the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” Caufield v. Cantele, 837 So. 2d 371, 378 (Fla. 2002). Thus, we reverse.

Following a petition for dissolution of marriage, the parties entered into an agreed upon marital settlement agreement. The agreement called, in part, for the parties to conduct an inventory of the marital home within thirty days. The agreement also contained a fee provision in paragraph 8.12, requiring any party who defaults under the agreement to reimburse the non-defaulting party for the expenses he or she incurred in enforcing the agreement.

The husband later filed a motion to compel a complete inventory of the marital home, arguing that the wife had prevented him from completing the inventory as it was contemplated in the marital settlement agreement. In the motion to compel, the husband requested an award of attorney’s fees and costs pursuant to section 61.16, Florida Statutes (2021), and the trial court’s inherent authority under the inequitable conduct doctrine.

The general magistrate conducted a hearing on the motion to compel and took judicial notice of the marital settlement agreement. The magistrate found that the wife had prevented the husband from completing the inventory of the marital home and granted his motion to compel. In ruling on the husband’s motion for fees, the magistrate noted that the husband did not initially request fees pursuant to the marital settlement agreement. However, the magistrate held, using the rationale in Caufield, that the husband’s request for fees under two categories did not preclude the husband from later requesting fees under a third category, in this case the default fee provision of the marital settlement agreement. The magistrate recommended that the trial court award the husband attorney’s fees pursuant to the default fee provision in the marital settlement agreement.

The trial court disagreed that the husband was entitled to fees, finding that the husband’s request did not fall under the precedent of Caufield because the husband had made a specific request for fees and not a general request. The trial court held that a general request for fees would have put the wife on notice of fees under the default fee provision, but the specific request did not. Thus, the husband was not awarded fees in connection with this matter. This appeal follows.

We review de novo an order on attorney’s fees which is based on the interpretation of the law. O’Malley v. Freeman, 241 So. 3d 204, 206 (Fla. 4th DCA 2018).

We start our analysis with Stockman v. Downs, 573 So. 2d 835, 836 (Fla. 1991), which noted past case law, including early Florida cases, holding that “a claim for attorney’s fees should be pled specifically.” Instead, the court concluded the “better view” was that “a claim for attorney’s fees, whether based on statute or contract, must be pled.” Id. at 837. The Stockman court was primarily concerned with notice to the opposing party. Id.

The Stockman court noted an exception to the general rule occurs when “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.” Id. at 838 (emphasis added). In these limited circumstances, that party “waives any objection to the failure to plead a claim for attorney’s fees.” Id. Both the exception and general rule in Stockman turn on whether the opposing party was sufficiently noticed of a claim for attorney’s fees.
In Caufield, the Florida Supreme Court clarified that when making a claim for attorney’s fees, “the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” 837 So. 2d at 378. The Caufields did not enumerate a specific statutory or contractual basis for attorney’s fees in their pleadings, and instead made only “a general prayer for attorney’s fees in the wherefore clause[ ].” Id. at 373.

The Caufield court recognized that “Stockman does not expressly require a specific pleading of the statutory or contractual basis of a claim for attorney’s fees.” Id. at 377. Caufield held “that the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” Id. at 378; see also Parker v. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in City of Tampa, 149 So. 3d 1129, 1134 (Fla. 2014) (holding that the claimant was not required to specify the statutory ground he sought attorney’s fees under and that a general claim for “plaintiff’s costs and attorney’s fees” was sufficient under Caufield). The Florida Supreme Court specifically declined to extend the holding of Stockman “to impose a stricter requirement for pleading a claim for attorney’s fees.” Caufield, 837 So. 2d at 378. In Caufield, the Florida Supreme Court reiterated that “the fundamental concern of the pleading requirement is notice.” Id. at 377.

Thus, the question we must address is whether the husband’s pleading of section 61.16 for recovery, instead of paragraph 8.12 of the marital settlement agreement, satisfied the fundamental notice concern of Stockman and Caufield. Stated otherwise, we must determine whether the wife was given sufficient notice that the husband was seeking attorney’s fees in this case. We find that the husband gave sufficient notice of his request for attorney’s fees, where the motion to compel sought a complete inventory of the former marital home in accordance with the marital settlement agreement, the wife was a signatory to the marital settlement agreement, and the trial court judicially noticed the marital settlement agreement.


In the context of a family law case, the husband’s reliance on section 61.16, instead of the correct provision of paragraph 8.12 of the marital settlement agreement, still gave notice to the wife. The specific provision relied on for attorney’s fees is not required under the progeny of Stockman and Caufield. Thus, the failure to rely on the specific provision, in this case paragraph 8.12 of the marriage settlement agreement, is not fatal to the request for attorney’s fees. Further, citing to section 61.16, a provision for attorney’s fees in dissolution actions, within the context of a family law related case, would still provide the required notice that an opposing party was seeking attorney’s fees.

The Third District’s decision in Lopez v. State Farm Mutual Automobile, 139 So. 3d 402 (Fla. 3d DCA 2014), demonstrates how citing a similar provision as a basis for an attorney’s fee award can sufficiently notice an opposing party. The insured in Lopez filed suit for breach of insurance contract and sought fees in his complaint pursuant to chapter 627 and section 57.105, Florida Statutes. Id. at 403. After determining that Texas law applied to the case and not Florida law, the insured sought fees under the Texas statute comparable to chapter 627, Florida Statutes, for awarding attorney’s fees in insurance disputes. Id. Reasoning that “notice is the fundamental concern” when pleading for attorney’s fees, the Third District held that the claim for attorney’s fees in the insured’s complaint was sufficient to put the insurer on notice that the insured would seek fees if he prevailed. Id. at 405. Similarly in this case, citing section 61.16, which allows a party requesting enforcement of a dissolution-related court order to seek fees from the other party, put the wife on notice that the husband would seek an award of attorney’s fees if legal action was required to compel the wife’s compliance with the final judgment of dissolution of marriage.

It is important to note that the Florida Supreme Court in Caufield held the Fifth District’s reliance on United Pacific Insurance Co. v. Berryhill, 620 So. 2d 1077 (Fla. 5th DCA 1993), to be in error. Berryhill had concluded that “[i]n order to be entitled to attorney’s fees, a party seeking them must plead the correct entitlement.” 620 So. 2d at 1079. Caufield later stated that the Fifth District’s reliance on Berryhill, “where it had previously held that Stockman requires a party to plead the ‘correct entitlement’ to attorney’s fees,” was incorrect, and concluded that there is no requirement of a specific pleading of the statutory or contractual basis of a claim for attorney’s fees. 837 So. 2d at 377.

The errant holding in Berryhill is essentially the wife’s argument, that the husband relied on the incorrect entitlement, section 61.16, and not the marital settlement agreement. We decline the wife’s request to reapply the essential holding of Berryhill under the facts of this case where the wife was sufficiently noticed of the husband’s claim for attorney’s fees.3 See Clay Hotel P’ship, Ltd. v. Tokio Marine Kiln Syndicate 1880, 21-20058-CV, 2021 WL 6135140, at *3 (S.D. Fla. Mar. 22, 2021) (holding that under federal law, where pleading for attorney’s fees is not required at all, pleading for attorney’s fees based on an incorrect basis does not preclude recovery on another basis); see also Life Changing Ministries, Inc. v. Canopius US Ins., Inc., 5:15-CV-59-OC-30PRL, 2016 WL 6947341, at *4 n.2 (M.D. Fla. Nov. 28, 2016) (“Even under Florida procedural law, the Court believes LCM’s failure to plead the correct statute would not have been a bar since ‘the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and … failure to plead the basis of such a claim will not result in waiver of the claim.’ Caufield v. Cantele, 837 So. 2d 371, 378 (Fla. 2002).”).

Under this set of facts, where the wife was a signatory to the marital settlement agreement, the marital settlement agreement was judicially noticed, and the husband did state a claim for fees in his motion to compel, the husband’s pleading under an incorrect ground is not fatal to his claim for attorney’s fees. We find that the husband gave the wife sufficient notice that he sought attorney’s fees in this case. Thus, we reverse and remand to the trial court for an award of attorney’s fees and costs to the husband.
Reversed and remanded with instructions.

Gross and Conner, JJ., concur.

4 thoughts on “4th DCA Erodes “American Rule” on Fees

Add yours

  1. Interesting…sorry about that. I can see both sides but curious are requirements/’is burden for recovery same/similar under 61.16 and MSA in your case?

  2. Good morning I am in the same or similar facts. As frustrating as it is to have been taught fees must be specifically asked for. Answering a Petition to modify with I want fees for defense of this action and not following it to the wherefore clause. Shocking but yes you only need Notice and should prepare to defend any right to fees they may have. They can even switch entitlement on the spot. It has actually served to widen my knowledge of how you can get fees and increased my requests when necessary.

    Have a great day!

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