In order to be entitled to attorney’s fees, the claim for attorney’s fees must be pled

he Florida Supreme Court has held that in order to be entitled to seek fees, the claim for attorney’s fees, whether based on statute or contract, must be pled. Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991). In Stockman, the Court did not expressly require that the specific statutory or contractual basis for attorney’s fees be pled, it merely held that the claim for attorney’s fees must be pled. There is a limited exception to this rule where the other party has notice that their opponent claims entitlement to attorney’sfees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to failure to plead entitlement, then that party waives any objection for the failure to plead. Id.

In Kistner v. Lowery, No. 2D2024-0003, 2025 WL 1085213 (Fla. 2nd DCA Apr. 11, 2025), the Second DCA recently granted a plaintiff’s motion for sanctions against the defendant, pursuant to Florida Statute 57.105, after the defendant filed a motion for prevailing party attorney’s fees without having pled a request for such fees. See Kistner v. Lowery, No. 2D2024-0003, 2025 WL 1085213 (Fla. 2ndDCA Apr. 11, 2025). The Second DCA noted that the defendant’s motion for prevailing party attorney’s fees was not supported by then existing law because they never pled a claim for such fees. Id. at 1. (To note, this opinion has not yet been released for publication and until release is subject to revision or withdrawal).

Therefore, attorneys should be careful to ensure that if they have a valid basis for attorney’s fees, that they include in their pleadings a claim for attorney’s fees. Attorneys should also be aware when a party has failed to include a claim for attorney’s fees in its pleadings, and be careful not to recognize or acquiesce to a claim for fees, or otherwise fail to object to the failure to plead entitlement to such fees.