Wednesday, July 22, 2009

Fee Award Reversed Since Demand For Fees Not in Pleading

In Mercer v. Kanowsky (4D07-3164), the Fourth District reversed a fee award based upon its prior decision in the same case, Wintter & Associates, P.A. v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008).

The issue was not addressed in the prior decision because "Since the lower court had not yet determined the amount of the fees the beneficiary could recover from the trustee and the law firm, the court’s ruling regarding the beneficiary’s right to fees was not yet appealable."

"On remand, the trust beneficiary continued to pursue her claim for attorney’s fees. Th e trial court awarded fees to the beneficiary, establishing the amount of attorney’s fees and ordering Mercer and the law firm to each bear half of the same. Both the law firm and Mercer appealed. See Wintter & Assocs., P.A., 992 So. 2d at 434. The law firm argued, among other things, that the beneficiary was not entitled to fees as she had failed to plead them as required by Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)."

Because it was not pled, the court reversed the award of attorneys fees.


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