Summary
In Callaway v. City of West Palm Beach, 674 So.2d 921 (Fla. 4th DCA 1996), it was held that rule set forth in Stockman v. Downs specifically applies to attorney's fees sought under 42 U.S.C. § 1988.
Summary of this case from Walker v. Cash Register Auto InsOpinion
No. 95-0049.
June 5, 1996.
Appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, Harold Jeffrey Cohen and James T. Carlisle, JJ.
James M. Adams of Gibson Adams, P.A., West Palm Beach, and Marilyn Sher of Chonin, Sher Navarrete, P.A., Coral Gables, for appellant.
Elizabeth T. McBride, Deputy City Attorney, West Palm Beach, Frank A. Kreidler, Lake Worth, and Alan J. Miller of Miller Miller, P.A., West Palm Beach, for appellees.
The appellee, successful in its defense, was awarded attorney's fees in consolidated cases. The law governing the lawsuits permitted the successful litigant the award of fees. Although the plaintiff made an appropriate demand, the defendant did not. The failure of the defendant to plead entitlement to attorney's fees precludes the award. Stockman v. Downs, 573 So.2d 835 (Fla. 1991).
Although one of the cases here involved a claim under 42 U.S.C. § 1988, which might otherwise allow for attorney's fees even though not requested until after judgment, see White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), Florida procedure applies here. Under Florida procedure, Stockman is controlling.
REVERSED.
DELL and STONE, JJ., and KAHN, MARTIN D., Associate Judge, concur.