Opinion
Case No. 4D02-470.
Opinion filed December 11, 2002.
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Robert S. Schwartz, Judge; L.T. Case No. AP 01-13547 AY.
Richard W. Glenn, West Palm Beach, for appellant.
Scott L. Pestcoe and Michael S. Chadrow of Bakalar, Brough Chadrow, P.A., Plantation, for appellee.
The county court judge in this case denied appellant's motion for attorney's fees and certified a question as being of great public importance concerning the application of a statute. We decline to answer the certified question, because appellant waived its claim for attorney's fees under the statute by failing to sufficiently raise it in a pleading.
In the proceedings below, the Knollwood Club Association, Inc. filed a two-count complaint against Walter D. Padow, M.D., P.A. to foreclose its lien for unpaid maintenance assessments or to obtain a judgment for damages. Padow's answer asserted entitlement to attorney's fees pursuant to section 57.105, Florida Statutes (2001) and "Fla. Ch. 718."
About one year into the litigation, Padow sent a $2,000 check to the Association. The trial judge later denied the Association's motion for summary judgment, ruling that all delinquent assessments had been paid by the $2,000 tender. Seven months later, the Association voluntarily dismissed its complaint without prejudice.
Padow then filed a motion to tax costs and attorney's fees, citing to sections 57.105 and 768.79, Florida Statutes (2001). At the hearing on the motion, appellant included sections 718.116 and 716.25 in his argument. The Association objected to Padow relying on these statutes and asserted that the generalized reference to "Fla. Ch. 718" in the answer was insufficient to preserve the claim. After the hearing, Padow filed a supplemental memorandum which, for the first time, included a claim for fees under section 718.303, Florida Statutes (2001).
Considering the merits of the attorney's fee issue, the trial judge denied the motion for attorney's fees and certified a question to this court concerning the meaning of the term "prevailing party" in section 718.303(1). See Fla.R.App.P. 9.030(b)(4)(A).
We decline to answer the certified question. Padow failed to sufficiently plead his claim for attorney's fees under section 718.303(1), and the "failure to do so constitutes a waiver of the claim." Stockman v. Downs, 573 So.2d 835, 837-38 (Fla. 1991). "The policy, behind the rule `is to provide notice to the opposing party that attorney's fees will be sought so that the opposing party might make an informed decision on whether to pursue a claim, dismiss it, or settle.'" Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708, 711 (Fla. 4th DCA 2002) (quotingPrudential Sec. Inc. v. Ruskin, 707 So.2d 782, 783 (Fla. 4th DCA 1998)).
The reference in the answer to "Fla. Ch. 718" was insufficient to raise a claim for fees under section 718.303. Padow did not bring section 718.303 to the court's attention until after the hearing on the motion for attorney's fees. If a party seeks fees under a statute, it must cite to the specific statutory section to sufficiently plead its claim underStockman.
This is the holding of Starkey v. Linn, 723 So.2d 333 (Fla. 5th DCA 1999). In that paternity case, a mother's responsive pleading sought fees under sections 742.031 or 61.16, but at a fees hearing she "claimed section 742.045 as a basis for fees." Id. at 337. The fifth district held that "section 742.045 fees were not raised by pleading and thus the claim was untimely." Id. Here, the general reference to "Fla. Ch. 718" is not much better than a reference to "Florida Statutes" or "Florida law"; all three are insufficiently precise to allow a party to make an informed "decision on whether to pursue a claim, dismiss it, or settle."Stockman, 573 So.2d at 837.
The case is transferred to the circuit court.
KLEIN and TAYLOR, JJ., concur.