DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANCES FRIES,
Appellant,
v.
TIM ANDERSON and LAURA ANDERSON,
Appellees.
No. 4D22-650
[January 25, 2023]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 50-2019-SC-
019717-XXXX-SB.
Lisa Weber of The Law Office of Lisa Weber, P.A., Boca Raton, for
appellant.
Dara Kustler, Poinciana, for appellees.
CONNER, J.
Appellant, Frances Fries (“the Landlord”), appeals the trial court’s order
of entitlement to attorney’s fees and final judgment awarding fees to
Appellees, Tim and Laura Anderson (“the Tenants”), entered after the
Tenants prevailed in their underlying action to recover their security
deposit from the Landlord. Because the Tenants failed to properly plead a
claim for attorney’s fees, we reverse the trial court and remand for further
proceedings. 1
Background
1A prior appeal of the order determining entitlement was dismissed as premature,
resulting in further litigation in the trial court regarding appellate fees for the
dismissed appeal, as well as other post-security-deposit-judgment proceedings.
Our decision that a claim for fees was not properly pled in the statement of claim
and remanding the case for further proceedings moots the other issues which the
Landlord raises in this appeal regarding fees for the dismissed appeal and other
post-judgment proceedings.
Beginning in 2016, the Tenants leased the Landlord’s residential
property for three consecutive years, signing a lease each year. Each lease
contract referenced Chapter 83, Florida Statutes, as to defaults and
remedies related to the lease. Each lease contract also contained the
following provision: “26. ATTORNEYS’ FEES. In any lawsuit brought to
enforce the Lease or under applicable law, the party in whose favor a
judgment or decree has been rendered may recover reasonable court costs,
including attorneys’ fees, from the non-prevailing party.”
At the end of the third lease year, 2019, the Tenants vacated the
property, but the Landlord did not return their security deposit. The
Tenants filed a pro se statement of claim in county court to recover their
security deposit from the Landlord. The statement of claim read in full:
Plaintiff(s): Tim Anderson Laura Anderson sues [sic]
Defendant[] [the Landlord] and alleges:
1. This is an action for damages that do not exceed the sum
of $5,000.00.
2. Plaintiff(s) claim the amount of $2500.00 as being due from
Defendant(s) named herein, and as the basis of this action
alleges: withholding security deposit – (1) [illegible dollar
amount]
WHEREFORE, Plaintiff[s] demand[] judgment for damages
against the Defendant(s) in the sum of $2500.00, plus costs
of court.
No lease agreement was attached.
Counsel for the Tenants filed a notice of appearance after a non-jury
trial had been set. The Landlord was pro se through the non-jury trial.
A final judgment was entered for the Tenants, awarding them
$2,245.30 in damages and court costs against the Landlord. The trial
court retained “jurisdiction over the matter and the Parties to enter further
orders deemed necessary” and specified, “[t]his Order is dispositive of all
issues and parties; the Clerk of Court is directed to close the file.” No
appeal of the security deposit final judgment was taken.
Shortly after entry of the security deposit final judgment, the Tenants
filed a motion for attorney’s fees specifically referring to paragraph 26 of
2
the leases. Thereafter, counsel for the Landlord filed a notice of
appearance and a response in opposition to the motion for fees.
The motion for fees proceeded to a hearing, first on the issue of
entitlement. The trial court heard testimony and received evidence. Four
days after the hearing, the Tenants filed an amended motion for fees to
supplement the original motion, seeking fees “in accordance with Florida
Small Claims Rules 7.175, Chapters 83.48 and 83.49(3)(c), and, Chapter
57.105(1) Florida Statutes [sic].”
The trial court then entered an order granting entitlement to fees,
finding the Tenants were entitled to reasonable attorney’s fees as the
prevailing party and pursuant to “Florida Small Claims Rules 7.175,
Chapters 83.48 and 83.49(3)(c), and, Chapter 57.105(1) Florida Statutes
[sic], as well as the ruling in Ganz v. HZJ, Inc.,
605 So. 2d 871 (Fla. 1992).”
The entitlement order recounted the background information of the
underlying security deposit issue and outlined the filings related to the
attorney’s fees issue. The filings included the Tenants’ amended motion
for fees, which was not filed until after the hearing. The entitlement order
also found the Tenants’ post-final judgment initial motion for fees proper
and timely pursuant to Florida Small Claims Rule 7.175. Regarding
entitlement to fees pursuant to section 57.105, Florida Statutes, the trial
court found the Landlord “knew or should have known that she was on
statutory notice as a landlord since November 1, 2016, the date of the
parties’ first lease, that the prevailing party in a dispute over security
deposits is entitled by law to fees and costs pursuant to Chapter
83.49(3)(c).”
Subsequently, the trial court conducted a hearing as to the amount of
fees and entered a final judgment awarding attorney’s fees to the Tenants.
The Landlord gave notice of appeal.
Appellate Analysis
We review de novo the legal issue of whether an attorney’s fees claim
was properly pled pursuant to Stockman v. Downs,
573 So. 2d 835, 837-
38 (Fla. 1991). Save on Cleaners of Pembroke II Inc. v. Verde Pines City Ctr.
Plaza LLC,
14 So. 3d 295, 296-97, 297 n.4 (Fla. 4th DCA 2009).
The Landlord argues that the Tenants waived their right to recover
attorney’s fees from the underlying security deposit action because they
did not plead for such before trial. Additionally, the Landlord points out
that no contracts are in the record on appeal to demonstrate entitlement
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to attorney’s fees, 2 nor did the trial court reserve jurisdiction on the issue
of attorney’s fees in the final judgment resolving the original security
deposit action.
The Tenants respond that they properly pled entitlement to attorney’s
fees when they expressly requested “costs of court” in their initial
statement of claim because the applicable lease agreement defines “court
costs” as including attorney’s fees. Additionally, the Tenants maintain
they properly requested attorney’s fees by filing a motion pursuant to
Florida Small Claims Rule 7.175 within 30 days of the final judgment
resolving the security deposit issue.
In Stockman, our supreme court held “that a claim for attorney’s fees,
whether based on statute or contract, must be pled. Failure to do so
constitutes a waiver of the claim.”
573 So. 2d at 837-38. The supreme
court later clarified that “use of the phrase ‘must be pled’ is to be construed
in accord with the Florida Rules of Civil Procedure. Complaints, answers,
and counterclaims are pleadings pursuant to Florida Rule of Civil
Procedure 1.100(a).” Green v. Sun Harbor Homeowners’ Ass’n,
730 So. 2d
1261, 1263 (Fla. 1998).
The Stockman holding created a uniform notice requirement for all
attorney’s fee claims and replaced a prevailing distinction that it was
unnecessary to plead a claim for fees when the claim was authorized by
statute, but that attorney’s fees must be pled when the claim was pursuant
to a contract. Stockman,
573 So. 2d at 836-37. The supreme court
emphasized its reasoning for the rule centering around the fundamental
concern of notice, stating:
The existence or nonexistence of a motion for attorney’s fees
may play an important role in decisions affecting a case. For
example, the potential that one may be required to pay an
opposing party’s attorney’s fees may often be determinative in
a decision on whether to pursue a claim, dismiss it, or settle.
A party should not have to speculate throughout the entire
course of an action about what claims ultimately may be
alleged against him.
Id. at 837 (footnote omitted). The supreme court expressly stated its
disapproval of case law holding that a claim for “fees either pursuant to
statute or contract need not be pled.”
Id. at 838.
2 The trial court docket does not reflect a list of exhibits introduced or marked for
identification at the security deposit trial conducted on March 17, 2021.
4
In the present case, the Tenants’ statement of claim primarily requested
the return of their security deposit and demanded relief as follows:
“WHEREFORE, Plaintiff[s] demand[] judgment for damages against the
Defendant(s) in the sum of $2500.00, plus costs of court.” (emphasis
added). An expressly specific claim for “attorney’s fees” is not mentioned
in the record until the Tenants’ post-judgment motion for fees.
The Tenants point to the language of the three lease agreements that
include attorney’s fees in defining the term “court costs”: “26. ATTORNEYS’
FEES. In any lawsuit brought to enforce the Lease or under applicable
law, the party in whose favor a judgment or decree has been rendered may
recover reasonable court costs, including attorneys’ fees, from the non-
prevailing party.” (emphasis added). While the term “costs” is not generally
understood to include attorney’s fees, Florida courts have recognized the
authority of parties to agree to contractual terms with the intent of treating
fees as costs. See, e.g., Wilson v. Rose Printing Co.,
624 So. 2d 257, 258
(Fla. 1993) (allowing attorney’s fees to be included as costs taxed against
a party pursuant to Florida Rule of Civil Procedure 1.420(d) based on the
definition of costs including attorney’s fees in the contract between the
parties); Sholkoff v. Boca Raton Cmty. Hosp., Inc.,
693 So. 2d 1114, 1118-
19 (Fla. 4th DCA 1997) (same). Wilson and Sholkoff emphasized the
importance of looking to the contract to determine the definition of costs.
Wilson,
624 So. 2d at 258; Sholkoff,
693 So. 2d at 1119.
However, in the instant case, the lease agreements are not referenced
in relation to the “costs of court” demand in the Tenants’ statement of
claim. Rather, the “costs of court” demand in the Tenants’ statement of
claim appears to be part of the form pleading furnished by the court clerk
to pro se litigants—which form the Tenants utilized, and on which they
simply filled in the blanks. While Florida Small Claims Rule 7.050(a)(1)
only requires a statement of claim to be “in concise form” and to “inform
the defendant of the basis and the amount of the claim,” utilizing the pro
se form without more is problematic to the Tenants’ position on their claim
for fees because the standard form demanding “costs of court,” on its own,
likely refers to the generally accepted definition of costs that does not
include attorney’s fees. See Wilson,
624 So. 2d at 258. This theory is
supported by the security deposit final judgment that awarded “court
costs” in the amount of $195.30 and expressly stated: “This Order is
dispositive of all issues and parties. . . .” (emphasis added).
More importantly, no copy of any lease agreement was attached to the
statement of claim, although rule 7.050(a)(1) requires that “[i]f the claim is
based on a written document, a copy or the material part thereof shall be
5
attached to the statement of claim.” Fla. Sm. Cl. R. 7.050(a)(1) (emphasis
added). Thus, the fact that the Tenants did not reference the lease
agreements in demanding “costs of court” or attach the lease agreements
to the statement of claim operates as a failure to comport with the purpose
of the pleading requirement addressed in Stockman regarding notice. See
Stockman,
573 So. 2d at 837. This is further supported by the fact that
the Tenants filed the statement of claim pro se and without any mention
of the pleading being prepared with the assistance of counsel. See O’Boyle
v. Town of Gulf Stream,
341 So. 3d 343, 344-46 (Fla. 4th DCA 2022).
The Tenants correctly assert that they were not required to plead the
specific basis for their fees claim in their pleading to avoid waiver. See
Caufield v. Cantele,
837 So. 2d 371, 378 (Fla. 2002). However, the
pleading must be sufficient to provide notice of the Tenants’ intention to
pursue a fee claim and prevent unfair surprise. See Stockman,
573 So. 2d
at 837. Here, the demand for “costs of court,” as viewed within the entirety
of the statement of claim, did not serve to put the Landlord on notice of
the Tenants’ intent to seek attorney’s fees. Thus, we hold the claim for
attorney’s fees was not sufficiently pled. 3
Conclusion
For the above reasons, we reverse the entitlement order and final
judgment awarding fees and remand for a new entitlement hearing with
correct application of the rule and exception in Stockman.
Reversed and remanded for further proceedings.
GROSS and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3 We note that in Stockman, our supreme court recognized an exception to the
pleading requirement “[w]here 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. However, the answer brief makes no argument for affirmance based
on applying the Stockman exception. Instead, the Tenants contend that the
Stockman notice requirement was complied with, making the Stockman exception
“superfluous and unnecessary.” Because the applicability of the Stockman
exception was not adequately addressed, we make no determination as to that
issue.
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