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.