## Facts

- Sellers Edward and Rose Caufield contracted to sell a Hernando County mobile home park and sewer plant to purchasers Gino and Armando Cantele; closing occurred and title transferred in 1993.
- In 1995, the purchasers sued alleging concealment of defects and fraudulent misrepresentations about the sewer plant’s condition.
- The sellers moved to dismiss and strike, asserting improper pleading, and included general requests for attorney’s fees in their motions and responsive pleadings.
- The contract contained a prevailing-party attorney’s fee provision for litigation “arising out of” the contract.
- Before trial, the purchasers voluntarily dismissed the action.
- The sellers sought fees under the contract; the trial court denied fees, concluding (1) the sellers failed to properly plead the basis for fees and (2) a fraudulent misrepresentation suit did not arise out of the contract.
- The district court affirmed but certified conflict on reviewability of post-dismissal fee orders and pleading requirements for fees; the Florida Supreme Court accepted jurisdiction to resolve the conflict.

## Issues

1. Whether a trial court’s post-voluntary-dismissal order determining entitlement to attorney’s fees and costs is reviewable by plenary appeal rather than extraordinary writ.
2. Whether a party seeking contractual or statutory attorney’s fees must specifically plead the source of entitlement, and whether failure to do so waives the claim.
3. Whether a fraudulent misrepresentation action concerning property purchased under a contract can constitute litigation “arising out of” the contract under a contractual fee clause.

## Decision

- The court approved in part and quashed in part the decision under review and remanded.
- Plenary appeal is the proper method to review a trial court’s determination of attorney’s fees and costs entered after a voluntary dismissal.
- The contractual or statutory basis for attorney’s fees need not be specifically pled; failure to cite the specific basis does not waive the claim when fees are otherwise requested.
- A fraudulent misrepresentation suit concerning property purchased pursuant to a contract may qualify as litigation “arising out of” the contract when the parties intended the fee provision to cover such litigation.

## Legal Principles

- A post-voluntary-dismissal order resolving entitlement to attorney’s fees and costs is a final order subject to plenary appellate review.
- A pleading preserves a fee claim if it provides notice of the request for attorney’s fees; it need not identify the precise contractual or statutory authority for the fees.
- “Arising out of” language in a contractual fee provision can reach tort claims tied to the contractual transaction, including fraudulent misrepresentation, when the parties intended that scope.

## Conclusion

The Florida Supreme Court held that post-dismissal fee entitlement orders are appealable by plenary appeal, that a general request for fees preserves the claim without specifying the legal basis, and that fraud claims connected to the contract’s subject matter may fall within an “arising out of” contractual fee clause depending on party intent, requiring remand for further proceedings.


Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002)