DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SHIRLEY’S PERSONAL CARE SERVICES OF OKEECHOBEE, INC., a
Florida corporation,
Appellant,
v.
TAMMY BOSWELL, an individual; JERRY HERNANDEZ, an individual;
REBEKAH BRAGUE, an individual; MARILYN PRYOR, an individual;
and ALL ABOUT YOU CAREGIVERS, INC., a Florida corporation,
Appellees.
No. 4D14-1801
[June 3, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Gary L. Sweet, Judge; L.T. Case No. 2011-CA-169.
D. John Rhodeback and J. Garry Rooney of Rooney & Rooney, P.A.,
Vero Beach, for appellant.
Colin M. Cameron of Colin M. Cameron, Esq., P.A., Okeechobee, for
appellees Tammy Boswell, Jerry Hernandez, Rebekah Brague and
Marilyn Pryor.
Jeffrey A. Fadley of Jeffrey A. Fadley, P.A., Okeechobee, for appellee
All About You Caregivers, Inc.
CIKLIN, J.
Shirley’s Personal Care Services of Okeechobee, Inc., the plaintiff
below, sued All About You Caregivers, Inc., the corporate defendant
below, plus four individuals (“individual defendants”), alleging breaches
of non-compete contracts concerning licensed home health care in
Okeechobee County. Shirley’s argues that the trial court erred in
awarding fees to the corporate defendant based on a contract provision,
because the corporate defendant was not a party to any contract. We
agree and reverse the award of fees to the corporate defendant. Shirley’s
also argues the court erred in awarding fees to the four individual
defendants because they did not make a specific prayer for fees. We find
this argument has merit, but only to the extent that any fees awarded
were for work unrelated to the injunction counts of the complaint. For
reasons set forth, we reverse and remand for further proceedings.
At the time of this dispute, there were only two licensed home health
care services in Okeechobee County: Shirley’s and the corporate
defendant, All About You Caregivers, Inc.
The four individual defendants worked for Shirley’s and at the
beginning of their professional employment relationship, allegedly signed
non-compete contracts.
The four individual defendants eventually separated from Shirley’s
and became employed by the other health care group, All About You, the
corporate defendant. Thereafter, the four individual defendants
continued to provide home health care services and in some cases,
continued to service patients they had met through Shirley’s.
Shirley’s eventually entered a voluntary dismissal of all defendants
(both corporate and individuals).
Shirley’s argues that the trial court erred in awarding fees to the
corporate defendant based on a contract provision, because the
corporate defendant was not a party to any contract. We agree and
reverse the award of fees to the corporate defendant. Shirley’s also
argues the court erred in awarding fees to the individual defendants
because they did not make a specific prayer for fees. We find this
argument has merit, but only to the extent that any fees awarded were
for work unrelated to the injunction counts of the complaint. For the
reasons set forth, we reverse and remand for further proceedings.
The plaintiff, Shirley’s, Inc., brought a complaint against the corporate
defendant and the individual defendants, seeking injunctive relief and
damages based on the individual defendants’ alleged violation of non-
compete agreements and the corporate defendant’s alleged interference
with those agreements. Count I of the complaint alleged breach of
contract by the individual defendants; count II alleged tortious
interference of contract by the corporate defendant; and counts III and IV
sought injunctions against the individual and corporate defendants,
respectively.
The complaint reflected that each of the individual defendants
executed a “Caregiver Referral Agreement,” which contains a non-
compete provision and the following provision regarding attorney’s fees:
“In the event suit to enforce this provision becomes necessary, Caregiver
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also agrees to pay Provider all expenses, court costs, and reasonable
attorneys fees incurred by Provider in any suit for its breach, including, if
necessary, fees and costs incurred on appeal.”
The corporate defendant filed its answer, which did not request fees.
Days later, the four individual defendants moved to bifurcate and, in
essence, expedite the hearing on the injunction counts. Shirley’s did not
object to the bifurcation and the trial court immediately directed the
parties to submit a pretrial statement. The parties did so, and the
statement contained the following acknowledgement by Shirley’s: “The
parties understand that the Pre-Trial Order is directed toward the
plaintiff’s motion for preliminary injunction only.” The individual
defendants also acknowledged the limited scope of the pretrial statement:
“The parties understand that the Pre-Trial Order is directed toward the
plaintiff’s request for entry of a preliminary injunction only. No other
matters in Plaintiff’s Verified Complaint are at issue or ready for trial.”
Under the section of the pretrial statement titled, “A specification of the
damages and/or relief claimed,” the four individual defendants stated,
“[the] attorney fee provision contained in the Caregiver Referral
Agreements, is reciprocal and allows an award of attorneys fees and
costs to the individual defendants.” The corporate defendant did not
address fees in the pretrial statement.
Before the bifurcated injunction hearing was to be held, the parties
entered into a joint stipulation withdrawing Shirley’s request for an
injunction hearing. The individual defendants eventually filed an
answer, which, like the corporate defendant’s, did not include a prayer
for attorney’s fees.
Shirley’s then ultimately filed a notice of voluntary dismissal of all
pending matters. Thereafter, the defendants (both corporate and
individual) moved for attorney’s fees. The four individual defendants’
motion was based on the contract’s provision for fees, and section
57.105(7), Florida Statutes (2013), which allows for reciprocity of
unilateral prevailing party attorney’s fees contractual provisions. The
motion also sought fees based on section 542.22, Florida Statutes (2013),
a statute permitting fees under certain circumstances in cases related to
monopolies and unlawful restraints on commerce. The corporate
defendant’s motion was based entirely on section 542.22.
During a hearing on fees, the defendants, both corporate and
individual, acknowledged their failure to request fees in their answer but
argued that the error was not fatal because the pretrial statement placed
Shirley’s on notice that all defendants were seeking attorney’s fees.
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The trial court found that both corporate and individual defendants
were entitled to fees: “I think based on the voluntary dismissal the
defendants are clearly the prevailing parties under the contract and the
operation of the applicable provision of Chapter 57.” The court
determined that “the defendants’ entitlement to fees [was] salvaged by
the inclusion of its intent to seek fees in the pre-trial stipulation and
without an express objection to that by Plaintiff’s attorney, there is an
inference that it is acquiesced to.”
Specifically, based on the pretrial stipulation, the court found that
“the attorney fee provision contained in the Caregiver Referral
Agreements, is reciprocal and allows an award of attorneys[’] fees and
costs to the individual defendants.” The court found that Shirley’s, Inc.
“waived its right to object to Defendants’ failures to plead an entitlement
to attorney’s fees and costs.” The court awarded fees in an amount
consistent with the evidence presented.
In a motion for rehearing, Shirley’s pointed out that the corporate
defendant was not a party to the contracts. The court denied the motion.
The standard of review of an award of attorney’s fees is abuse of
discretion. Campbell v. Campbell,
46 So. 3d 1221, 1222 (Fla. 4th DCA
2010). However, any legal issue raised is subject to de novo review. See
Save on Cleaners of Pembroke II Inc. v. Verde Pines City Ctr. Plaza LLC,
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So. 3d 295, 297 (Fla. 4th DCA 2009). The general rule is that “each
party is responsible for its own attorneys’ fees unless a contract or
statute provides otherwise . . . .” Price v. Tyler,
890 So. 2d 246, 251 (Fla.
2004).
Here, the trial court awarded fees to both the individual defendants
and the corporate defendant based on attorney’s fees provisions in the
contracts between the plaintiff and just the individual defendants.
Indeed, the corporate defendant does not dispute that it was not a party
to the contracts. Instead, the corporate defendant asks us to rely on
section 542.22 to affirm the award of fees, despite the fact that the trial
court based its fee order on the non-compete contracts and made no
findings with respect to application of the statute. We note that the
corporate defendant did not move for rehearing below and did not file a
cross-appeal with us concerning the judgment awarding fees based on
the contract. We must reverse the award of fees to the corporate
defendant.
However, to the extent that Shirley’s argues that the award of costs
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was also error based on a failure to plead, we disagree. In Stockman v.
Downs,
573 So. 2d 835, 837 (Fla. 1991), the Florida Supreme Court held
that “a claim for attorney’s fees, whether based on statute or contract,
must be pled.” However, this pleading requirement does not apply to
costs, which may be awarded pursuant to section 57.041 to “any party
recovering judgment.” See First Protective Ins. Co. v. Featherston,
978 So.
2d 881, 884 (Fla. 2d DCA 2008) (en banc). Because the only issue raised
with respect to the award of costs is meritless, we affirm the award of
costs to the corporate defendant.
With respect to the award of fees to the individual defendants, the
issue at the heart of this appeal is whether the attorney’s fee entitlement
waiver exception of Stockman applies. The trial court relied on the
pretrial statement as a basis for applying the waiver exception.1
In Stockman, the court recognized an exception to the general rule
requiring attorney’s fees be pled: “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.” Stockman,
573 So. 2d at 838.
Our supreme court cited Brown v. Gardens by the Sea S.
Condominium Ass’n,
424 So. 2d 181 (Fla. 4th DCA 1983), as an example
of a case where the failure to plead was waived. Stockman,
573 So. 2d at
838. In Brown, the defendants did not plead for attorney’s fees in their
answer, but this court held that the failure to plead was not fatal where
the plaintiff was on notice of the claim for fees based on the following: 1)
the parties discussed the issue of attorney’s fees during a pretrial
conference, 2) the defendants’ pretrial statement listed entitlement and
amount of fees and costs as an issue, 3) the final judgment reserved
jurisdiction to entertain entitlement to fees and costs pursuant to the
lease, condominium documents, and Florida law, and 4) the defendants
filed their motion for fees and costs after the plaintiff was on notice of the
request.
424 So. 2d at 183. The court reasoned further:
It is manifest from the foregoing outline of events that
appellees and the trial court at all pertinent times knew,
1 The individual defendants argue that there is other evidence that they put
Shirley’s on notice of their intent to seek fees. For example, they rely on emails
the parties exchanged. However, the trial court did not rely on any grounds
other than the pretrial statement.
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recognized and acquiesced, without objection or suggestion
of surprise, prejudice or disaccommodation, that appellants
were claiming fees and the contract basis for that claim.
Moreover, the recognition at pre-trial conference by all
involved, including the court, of appellants’ claim is a
legitimate basis for a finding of waiver or estoppel as
concerns appellants’ failure to plead. It is fair to speculate
that had the appellees or the court expressed any surprise or
discontent with the notion that appellants were seeking fees,
then certainly appellants would have been galvanized into
formally amending and pleading their entitlement. As
matters stood, appellants were affirmatively lulled into
believing that their claim was known, alive, and that same
would be adjudicated. Based on these facts, appellees should
not be heard or permitted to now object to appellants’ failure
to formally plead.
Id. at 183-84.
In a more recent case, this court reaffirmed that raising entitlement to
attorney’s fees as an issue in a joint pretrial stipulation is a sufficient
basis to later request attorney’s fees, so long as the other party
acquiesces by failing to raise an objection. See Dickson v. Heaton,
87 So.
3d 81, 83-84 (Fla. 4th DCA 2012).
It is clear from these cases that if a party fails to plead for attorney’s
fees but raises the issue in a pretrial statement, the other party must
object or it waives the issue of the party’s failure to plead. Even so, there
is some merit to Shirley’s argument that the formal answer controls.
Under the unique circumstances of this case, Shirley’s was placed on
notice of fees to an extent—but not to the extent found by the trial court.
Here, the pretrial statement was expressly limited to the two injunction
counts. As such, it did not put Shirley’s on notice that the individual
defendants would seek fees for work related to any of the other remaining
counts of the complaint. The individual defendants’ answer, which was
filed after the pretrial statement was submitted, simply did not request
fees.
The court’s fee award may have encompassed fees for work related to
other counts of the complaint. Therefore, we reverse and remand for the
trial court to conduct an additional hearing as to the amount of fees to
be awarded in this matter. The award should be limited to work related
to the injunction counts of the complaint. We affirm the award of costs
to the individual defendants.
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Reversed and remanded for further proceedings.
STEVENSON and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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