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Obtaining Attorney’s Fees as Costs on Dismissed Actions
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Obtaining Attorney’s Fees as Costs on Dismissed Actions

April 18, 2014 Professional Services Industry Legal Blog

Reading Time: 4 minutes

In litigation, under the right set of facts and law, the losing party is responsible for the attorney’s fees of the prevailing party. But, this determination is not always so simple.  This post explores a recent decision where the litigants were entitled to fees under the contract, but fees were not plead in the answer and the case was voluntarily dismissed.  Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit.

As a general rule, when a plaintiff voluntarily dismisses the action, the defendant is deemed to be the prevailing party for purposes of attorney’s fees.[i]  In Lopez, Bank of America voluntarily dismissed a foreclosure action against the Lopez’s, and the Lopez’s sought to recover attorney’s fees under rule 1.420(d), Florida Rule of Civil Procedure. Id.; Fla. R. Civ. P. 1.420 (governing dismissal of actions); see also Rose Printing Co. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992), approved, 624 So. 2d 257, 258 (Fla. 1993) (ignoring the contractual prevailing party requirement of rule 1.525, Fla. R. Civ. P., because fees were sought as part of recoverable costs under rule 1.420(d), Fla. R. Civ. P., not under the contract’s fee provision). Attorney’s fees were not pleaded in the Lopez’s answer, but the contract with the bank included attorney’s fees as part of recoverable costs. Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014). The facts presented a new question before the court:  whether parties may recover attorney’s fees as part of their costs under rule 1.420(d) if they had not sought attorney’s fees in their pleadings. Id. at *1. The district court looked to Florida Supreme Court precedent to supply the answer:  “all claims for attorney’s fees, whether based on statute or contract, must be pleaded.”[ii]  The Florida Supreme Court, in dicta, noted that modern pleadings must notify the opposing party of claims alleged and to prevent unfair surprise; therefore, raising entitlement to attorney’s fees after judgment, or dismissal, fails to serve either objective.

While there are some exceptions to this general rule, none applied to the facts in Lopez.[iii]  As such, the Lopez court held that when a plaintiff voluntarily dismisses a complaint, a defendant may be awarded attorney’s fees as costs under rule 1.420(d) if (1) the parties’ contract or a statute defines fees as an element of costs and (2) the defendant either had given notice that he was claiming fees in responsive pleadings or falls within an applicable exception. Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014).

The holding is crafted narrowly and specifically to not conflict with statutes.  The present finding is distinguished from a previous holding that a party is not required to plead entitlement to costs.[iv]  This is because costs are inherent in every lawsuit, and are generally recoverable pursuant to section 57.041, Florida Statutes.  There is no generally applicable statute entitling a prevailing party to recover attorney’s fees.  Although parties can expand the ordinary definition of costs to include attorney’s fees, as occurred in Lopez, this does not abrogate the requirement that attorney’s fees must be pleaded.

[i] Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990).

[ii] Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991).

[iii] See Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991) (finding an exception when a party has notice that an opponent  is claiming fees and by its conduct recognizes or acquiesces to that claim); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So. 2d 1026, 1029 (Fla. 2d DCA 2002) (recognizing additional exceptions in cases that are involuntarily dismissed).

[iv] See First Protective Ins. Co. v. Featherston, 978 So. 2d 881 (Fla. 2d DCA 2008).

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