Summary
In Sandoval v. Banco de Comercio, S.A, 585 So.2d 934, 934 (Fla. 1991), it reaffirmed both of the Stockman holdings — that a claim for attorney's fees must be pled and that an opposing party that, "by its conduct recognizes or acquiesces to th[e] claim or otherwise fails to object to the failure to plead entitlement,... waives any objection to the failure to plead a claim for attorney's fees."
Summary of this case from Rabbit Hill Homeowners Ass'n v. CoryOpinion
No. 76931.
September 12, 1991.
Appeal from the Circuit Court, Dade County, Leonard Rivkind, J.
James C. Adkins, Tallahassee, and Arnaldo Velez of Taylor, Brion, Buker Greene, Miami, for petitioners.
Hilarie Bass and Raquel A. Rodriguez of Greenberg, Traurig, Hoffman, Lipoff, Rosen Quentel, P.A., Miami, for respondents.
Pursuant to article V, section 3(b)(3), Florida Constitution, we review Perez Sandoval v. Banco de Comercio, 566 So.2d 828 (Fla. 3d DCA 1990), because of conflict with Stockman v. Downs, 573 So.2d 835 (Fla. 1991). In Perez Sandoval the district court affirmed a judgment for attorney's fees and held that it is not necessary to plead entitlement to attorney's fees in a complaint. In Stockman, on the other hand, we held that a claim for attorney's fees, whether based on statute or contract, must be pled.
Stockman, however, recognizes an exception to its general rule: "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." 573 So.2d at 838. The exception clearly applies in this case. All parties knew that the recovery of attorney's fees was an issue and stipulated that "the trial court should decide whether Venezuelan law provides that the prevailing party in this action is entitled to recover its fees and costs."
We, therefore, approve the decision under review, but disapprove the suggestion that in all circumstances there is no requirement to plead entitlement to attorney's fees. We choose not to discuss the other issues raised by the petitioners.
It is so ordered.
SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.