Lopez v. Bank of America, N.A.
153 So. 3d 922
Fla. Dist. Ct. App.2014Background
- Bank of America filed and later voluntarily dismissed a foreclosure action against Jaime and Viviana Lopez.
- After dismissal the Lopezes moved for attorney’s fees under Florida Rule of Civil Procedure 1.420(d), which allows awarding costs to a defendant when a plaintiff voluntarily dismisses.
- The Lopezes’ loan documents defined attorney’s fees as part of recoverable "costs."
- The Lopezes did not plead entitlement to attorney’s fees in their answer to the bank’s complaint.
- The circuit court denied the Lopezes’ motion for fees; the appellate panel affirmed.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Bank of America) | Held |
|---|---|---|---|
| Whether a defendant may recover attorney’s fees as "costs" under rule 1.420(d) after a voluntary dismissal when the defendant did not plead entitlement to fees | Contract defined fees as "costs," so pleading not required; Wilson allows fees as costs under rule 1.420(d) | Stockman requires attorney’s-fee entitlement to be pleaded unless an exception applies; Wilson is not controlling because Rose Printing pleaded fees | A defendant may recover fees as costs under rule 1.420(d) only if the contract/statute defines fees as costs and the defendant pleaded entitlement or fits recognized exceptions; here Lopezes failed to plead, so denial affirmed |
| Whether Wilson v. Rose Printing creates an exception to Stockman permitting fees without pleading | Wilson supports recovery of fees as costs without pleading because contract included fees in costs | Wilson did not address pleading because Rose Printing had pleaded fees; it does not overrule Stockman’s pleading rule | Wilson does not create a pleading exception; Stockman’s rule stands |
| Whether prior cases permit claiming fees post-dismissal by motion without pleading | Lopez relies on contractual expansion of costs to include fees and on Wilson’s outcome | Bank relies on Stockman and cases requiring notice/pleading for attorney’s fees; only narrow exceptions apply | Post-dismissal fee motions are allowed only under Stockman/Ajax exceptions (e.g., defendant notified via responsive pleading or other limited circumstances); not met here |
| Whether attorney’s fees differ from ordinary costs for pleading purposes | Lopez argues fees are included in contract-defined costs so treated like costs | Bank argues attorney’s fees are distinct and must be pleaded because they are not ordinarily recoverable | Court reiterates attorney’s fees are different from statutory/court costs and must be pleaded when based on statute or contract |
Key Cases Cited
- Wilson v. Rose Printing Co., 624 So.2d 257 (Fla. 1993) (contract defining fees as costs allowed recovery under rule 1.420(d) where defendant pleaded fees)
- Stockman v. Downs, 573 So.2d 835 (Fla. 1991) (claims for attorney’s fees based on statute or contract must be pleaded; narrow exceptions)
- Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990) (plaintiff’s voluntary dismissal generally makes defendant the prevailing party)
- Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026 (Fla. 2d DCA 2002) (discusses exceptions for fee claims after involuntary dismissals and timing for motions)
- Rose Printing Co. v. Wilson, 602 So.2d 600 (Fla. 1st DCA 1992) (trial court decision discussed in Wilson; defendant had pleaded entitlement to fees)
- First Protective Ins. Co. v. Featherston, 978 So.2d 881 (Fla. 2d DCA 2008) (distinguishes ordinary costs from attorney’s fees for pleading requirements)