The Need to Plead for Fees
Posted By Robert Sparks || Aug 1, 2012
In most Florida civil actions, including but not limited to personal injury cases, a plaintiff’s claim for attorney fees and costs must be plead in their complaint. A recent decision from the Second District Court of Appeal addressed this issue.
In the case of Imseis v. Zaher, 83 So.3d 1014 (Fla. 2d DCA 2012) the Second District Court of Appeal held that “a claim for attorney’s fees must be pleaded, whether based on contract or statute.” The court of appeals held that it was error for the trial court to reserve jurisdiction to determine entitlement to an award of attorney’s fees where no one plead for such relief.
The court went on to hold that in addition to the requirement that a request for attorney’s fees must be plead it also must be sought by and through a timely motion.
Florida Rules of Civil Procedure 1.525. Fla. R. Civ. P. 1.525 provides that,
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
Thus, in order to preserve the right to seek an award of attorney’s fees and costs a request for fees should be plead with the complaint and should be sought according to the rule of civil procedure (by motion and no later than 30 days after filing of the judgment).