Opinion
Nos. 91-0537 and 91-0819.
March 25, 1992. Rehearing and Rehearing En Banc Denied May 1, 1992.
Appeal from the Circuit Court, Broward County, Linda L. Vitale, J.
James C. Blecke, Miami, and Thomas J. Caldwell of Caldwell, McNally Carroll, Miami, for appellant-Max Dial Porsche Audi, Inc.
Roger G. Stanway, Hollywood, for appellees-Kushner.
We reverse the final judgment awarding attorney's fees. It is error to award attorney's fees in the absence of a demand for such fees in the pleadings. Stockman v. Downs, 573 So.2d 835 (Fla. 1991).
Here, at the time the appellant-plaintiff took a voluntary dismissal of its claim, the only defense pleading was an answer that did not contain a request for fees. However, there was a pending motion for leave to file an amended answer which did contain such a request. The dismissal was taken prior to any hearing on the pending motion.
Therefore, applying Stockman, there was still a "waiver" of any right to fees notwithstanding appellees' expressed intention to seek fees in the event the court gave leave to file the amended answer. We note that the trial court had previously denied appellant's request to amend the complaint, thus precipitating the voluntary dismissal. There are no additional factors in this case such as acquiescence, misleading conduct, or a waiver by appellant, sufficient to raise equitable considerations to support an exception to the pleading requirement.
We also note that the plaintiff's claim was subsequently refiled. This opinion is without prejudice to the trial court awarding any fees properly sought in the subsequent action. There is no need to address the other issues raised. We remand for entry of an amended cost judgment.
HERSEY and DELL, JJ., concur.