Wednesday, August 12, 2009

Entitlement to Contractual Attorneys Fees Preserved Even When Not Pled

In Save On Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC (4D08-2897), the Fourth District reversed the trial court's refusal to award contractual attorneys fees even though the plaintiff had not included a prayer for fees in its pleading.

The court held:

An implicit rationale for Stockman’s exception — and its concomitant requirement of objecting to an unpleaded claim — is that under the Rules of Civil Procedure the failure to object to a claim not pleaded may operate as a consent to amendment of the pleading to include the claim. Under the circumstances, tenant was entitled under rule 1.190(b) to have its pleading amended to claim fees and thus conform its pleading to the record of claiming such fees throughout the case. If landlord desired to insist on a strict application of the Stockman rule and avoid its exception, it was necessary to object when tenant attempted to claim fees without a formal pleading.


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