## Facts

- A homeowners’ association sued a townhome owner for alleged violations of recorded covenants and requested attorney’s fees under a prevailing-party provision in the governing declaration.
- The owner responded with pre-answer motions (including a motion to strike/dismiss and discovery-related motions) that did not request attorney’s fees.
- Before any answer was due, the owner moved to dismiss for failure to prosecute under Florida Rule of Civil Procedure 1.420(b).
- The association agreed to a Rule 1.420(b) dismissal; the dismissal order did not address attorney’s fees.
- Two weeks after dismissal, the owner moved for attorney’s fees as the prevailing party under the declaration.
- The trial court denied fees, concluding the owner waived the claim by not raising it in a pleading or motion before dismissal.

## Issues

1. Whether a defendant waives a contractual attorney’s fee claim by failing to request fees in a pleading or motion before dismissal when the defendant’s time to answer has not matured and the plaintiff’s complaint itself requests attorney’s fees.

## Decision

- The Supreme Court of Florida reversed the denial of attorney’s fees and quashed the affirmance below.
- The court held the defendant did not waive the fee claim in this posture because the plaintiff’s complaint already placed attorney’s fees at issue and the defendant had not yet been required to file an answer or responsive pleading asserting fees.
- The case was remanded for further proceedings on entitlement to, and amount of, fees.

## Legal Principles

- Contractual or statutory attorney’s fees are treated as special damages and generally must be pled; failure to plead normally results in waiver.
- The central purpose of the pleading requirement is notice to the opposing party that attorney’s fees are being sought.
- When a plaintiff pleads a contractual prevailing-party fee claim in the complaint, all parties are on notice that attorney’s fees are in dispute.
- A defendant is not required to assert a fee claim before dismissal where no answer is yet due and the plaintiff’s fee request already provides notice; requiring an earlier motion would extend the waiver rule beyond its notice rationale.
- A prevailing-party fee clause invoked by a plaintiff supports reciprocal availability of fees to a prevailing defendant under the same provision.

## Conclusion

Because the complaint requested prevailing-party attorney’s fees and the action was dismissed before the defendant’s answer was due, the defendant did not waive the contractual fee claim by waiting until after dismissal to move for fees; the case was remanded for determination of fees.


Green v. Sun Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998)