THOMAS MCARDLE v. COURTNEY MCARDLE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THOMAS MCARDLE,
Appellant,
v.
COURTNEY MCARDLE,
Appellee.
No. 4D22-346
[January 11, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Kerner, Judge; L.T. Case No. 50-2018-DR-007572-
XXXX-SB (FZ).
Amy Wessel Jones of Shutts & Bowen LLP, Fort Lauderdale, and
Jennifer E. Reisler of Shutts & Bowen LLP, West Palm Beach, for appellant.
Gina M. Szapucki and Eddie Stephens of Stephens & Stevens, PLLC,
West Palm Beach, for appellee.
LEVINE, J.
The husband moved to compel an inventory of the marital home in
accordance with a marital settlement agreement. Due to the wife’s refusal
to allow a complete inventory of the home, the husband sought attorney’s
fees. The husband based his fee request on section 61.16, Florida Statutes
(2021), and the court’s inherent authority under the inequitable conduct
doctrine. The trial court took exception to the magistrate’s findings, which
had awarded the husband fees under the marital settlement agreement,
and held that the husband was not entitled to attorney’s fees. We disagree.
We find that the husband’s citation to section 61.16, instead of the
marital settlement agreement, still gave the wife notice that he sought
attorney’s fees in this case. We find that, in these circumstances, “the
specific statutory or contractual basis for a claim for attorney’s fees need
not be specifically pled, and that failure to plead the basis of such a claim
will not result in waiver of the claim.” Caufield v. Cantele, 837 So. 2d 371,
378 (Fla. 2002). Thus, we reverse.
Following a petition for dissolution of marriage, the parties entered into
an agreed upon marital settlement agreement. The agreement called, in
part, for the parties to conduct an inventory of the marital home within
thirty days. The agreement also contained a fee provision in paragraph
8.12, requiring any party who defaults under the agreement to reimburse
the non-defaulting party for the expenses he or she incurred in enforcing
the agreement.
The husband later filed a motion to compel a complete inventory of the
marital home, arguing that the wife had prevented him from completing
the inventory as it was contemplated in the marital settlement agreement.
In the motion to compel, the husband requested an award of attorney’s
fees and costs pursuant to section 61.16, Florida Statutes (2021), and the
trial court’s inherent authority under the inequitable conduct doctrine.
The general magistrate conducted a hearing on the motion to compel
and took judicial notice of the marital settlement agreement. The
magistrate found that the wife had prevented the husband from
completing the inventory of the marital home and granted his motion to
compel. In ruling on the husband’s motion for fees, the magistrate noted
that the husband did not initially request fees pursuant to the marital
settlement agreement. However, the magistrate held, using the rationale
in Caufield, that the husband’s request for fees under two categories did
not preclude the husband from later requesting fees under a third
category, in this case the default fee provision of the marital settlement
agreement. The magistrate recommended that the trial court award the
husband attorney’s fees pursuant to the default fee provision in the marital
settlement agreement. 1
The trial court disagreed that the husband was entitled to fees, finding
that the husband’s request did not fall under the precedent of Caufield
because the husband had made a specific request for fees and not a
general request. The trial court held that a general request for fees would
have put the wife on notice of fees under the default fee provision, but the
specific request did not. Thus, the husband was not awarded fees in
connection with this matter. This appeal follows.
1 The magistrate calculated $22,178.50 in attorney’s fees. Both parties later
conceded that the magistrate erred in calculating the fees, and both parties
agreed that $19,429.50 was the amount of fees that should be awarded if there
was an entitlement to fees.
2
We review de novo an order on attorney’s fees which is based on the
interpretation of the law. O’Malley v. Freeman, 241 So. 3d 204, 206 (Fla.
4th DCA 2018).
We start our analysis with Stockman v. Downs, 573 So. 2d 835, 836
(Fla. 1991), which noted past case law, including early Florida cases,
holding that “a claim for attorney’s fees should be pled specifically.”
Instead, the court concluded the “better view” was that “a claim for
attorney’s fees, whether based on statute or contract, must be pled.” Id.
at 837. The Stockman court was primarily concerned with notice to the
opposing party. Id.The Stockman court noted an exception to the general rule occurs when
“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.” Id. at 838 (emphasis added). In these limited circumstances,
that party “waives any objection to the failure to plead a claim for
attorney’s fees.” Id. Both the exception and general rule in Stockman turn
on whether the opposing party was sufficiently noticed of a claim for
attorney’s fees.
In Caufield, the Florida Supreme Court clarified that when making a
claim for attorney’s fees, “the specific statutory or contractual basis for a
claim for attorney’s fees need not be specifically pled, and that failure to
plead the basis of such a claim will not result in waiver of the claim.” 837
So. 2d at 378. The Caufields did not enumerate a specific statutory or
contractual basis for attorney’s fees in their pleadings, and instead made
only “a general prayer for attorney’s fees in the wherefore clause[].” Id. at
373.
The Caufield court recognized that “Stockman does not expressly
require a specific pleading of the statutory or contractual basis of a claim
for attorney’s fees.” Id. at 377. Caufield held “that the specific statutory
or contractual basis for a claim for attorney’s fees need not be specifically
pled, and that failure to plead the basis of such a claim will not result in
waiver of the claim.” Id. at 378; see also Parker v. Bd. of Trs. of City Pension
Fund for Firefighters & Police Officers in City of Tampa, 149 So. 3d 1129,
1134 (Fla. 2014) (holding that the claimant was not required to specify the
statutory ground he sought attorney’s fees under and that a general claim
for “plaintiff’s costs and attorney’s fees” was sufficient under Caufield).
The Florida Supreme Court specifically declined to extend the holding of
Stockman “to impose a stricter requirement for pleading a claim for
attorney’s fees.” Caufield, 837 So. 2d at 378. In Caufield, the Florida
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Supreme Court reiterated that “the fundamental concern of the pleading
requirement is notice.” Id. at 377.
Thus, the question we must address is whether the husband’s pleading
of section 61.16 for recovery, instead of paragraph 8.12 of the marital
settlement agreement, satisfied the fundamental notice concern of
Stockman and Caufield. 2 Stated otherwise, we must determine whether
the wife was given sufficient notice that the husband was seeking
attorney’s fees in this case. We find that the husband gave sufficient notice
of his request for attorney’s fees, where the motion to compel sought a
complete inventory of the former marital home in accordance with the
marital settlement agreement, the wife was a signatory to the marital
settlement agreement, and the trial court judicially noticed the marital
settlement agreement.
In the context of a family law case, the husband’s reliance on section
61.16, instead of the correct provision of paragraph 8.12 of the marital
settlement agreement, still gave notice to the wife. The specific provision
relied on for attorney’s fees is not required under the progeny of Stockman
and Caufield. Thus, the failure to rely on the specific provision, in this
case paragraph 8.12 of the marriage settlement agreement, is not fatal to
the request for attorney’s fees. Further, citing to section 61.16, a provision
for attorney’s fees in dissolution actions, within the context of a family law
related case, would still provide the required notice that an opposing party
was seeking attorney’s fees.
The Third District’s decision in Lopez v. State Farm Mutual Automobile,
139 So. 3d 402 (Fla. 3d DCA 2014), demonstrates how citing a similar
provision as a basis for an attorney’s fee award can sufficiently notice an
opposing party. The insured in Lopez filed suit for breach of insurance
contract and sought fees in his complaint pursuant to chapter 627 and
section 57.105, Florida Statutes. Id. at 403. After determining that Texas
law applied to the case and not Florida law, the insured sought fees under
the Texas statute comparable to chapter 627, Florida Statutes, for
awarding attorney’s fees in insurance disputes. Id. Reasoning that “notice
is the fundamental concern” when pleading for attorney’s fees, the Third
District held that the claim for attorney’s fees in the insured’s complaint
was sufficient to put the insurer on notice that the insured would seek fees
if he prevailed. Id. at 405. Similarly in this case, citing section 61.16,
2This question has been brought to this court twice before. Dickson v. Heaton,
87 So. 3d 81, 84 (Fla. 4th DCA 2012); Van Vechten v. Anyzeski, 157 So. 3d 350,
355 (Fla. 4th DCA 2015). Because those cases were decided on other issues, this
court has not yet reached this question.
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which allows a party requesting enforcement of a dissolution-related court
order to seek fees from the other party, put the wife on notice that the
husband would seek an award of attorney’s fees if legal action was required
to compel the wife’s compliance with the final judgment of dissolution of
marriage.
It is important to note that the Florida Supreme Court in Caufield held
the Fifth District’s reliance on United Pacific Insurance Co. v. Berryhill, 620
So. 2d 1077 (Fla. 5th DCA 1993), to be in error. Berryhill had concluded
that “[i]n order to be entitled to attorney’s fees, a party seeking them must
plead the correct entitlement.” 620 So. 2d at 1079. Caufield later stated
that the Fifth District’s reliance on Berryhill, “where it had previously held
that Stockman requires a party to plead the ‘correct entitlement’ to
attorney’s fees,” was incorrect, and concluded that there is no requirement
of a specific pleading of the statutory or contractual basis of a claim for
attorney’s fees. 837 So. 2d at 377.
The errant holding in Berryhill is essentially the wife’s argument, that
the husband relied on the incorrect entitlement, section 61.16, and not
the marital settlement agreement. We decline the wife’s request to reapply
the essential holding of Berryhill under the facts of this case where the wife
was sufficiently noticed of the husband’s claim for attorney’s fees. 3 See
Clay Hotel P’ship, Ltd. v. Tokio Marine Kiln Syndicate 1880, 21-20058-CV,
2021 WL 6135140, at *3 (S.D. Fla. Mar. 22, 2021) (holding that under
federal law, where pleading for attorney’s fees is not required at all,
pleading for attorney’s fees based on an incorrect basis does not preclude
recovery on another basis); see also Life Changing Ministries, Inc. v.
Canopius US Ins., Inc., 5:15-CV-59-OC-30PRL, 2016 WL 6947341, at *4
n.2 (M.D. Fla. Nov. 28, 2016) (“Even under Florida procedural law, the
Court believes LCM’s failure to plead the correct statute would not have
been a bar since ‘the specific statutory or contractual basis for a claim for
attorney’s fees need not be specifically pled, and . . . failure to plead the
basis of such a claim will not result in waiver of the claim.’ Caufield v.
Cantele, 837 So. 2d 371, 378 (Fla. 2002).”).
Under this set of facts, where the wife was a signatory to the marital
settlement agreement, the marital settlement agreement was judicially
noticed, and the husband did state a claim for fees in his motion to compel,
3The wife relies in part on Lenahan v. Lenahan, 327 So. 3d 353 (Fla. 3d DCA
2021); however, Lenahan is inapplicable because the operative question was
whether the Stockman exception to pleading applied where a party has notice of
an opponent’s claim for attorney’s fees and the party’s actions or inactions show
acquiescence to the fee claim.
5
the husband’s pleading under an incorrect ground is not fatal to his claim
for attorney’s fees. We find that the husband gave the wife sufficient notice
that he sought attorney’s fees in this case. Thus, we reverse and remand
to the trial court for an award of attorney’s fees and costs to the husband.
Reversed and remanded with instructions.
GROSS and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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