41
Fla. L. Weekly D2454bTop of Form
Fla. L. Weekly D2454bTop of Form
Attorney’s
fees — Failure to plead entitlement to attorney’s fees — Exception to
requirement that party must plead entitlement to attorney’s fees — Defendant
waived objection to failure to plead claim for attorney’s fees where defendant
had notice that plaintiff claimed entitlement to fees and by its conduct
recognized or acquiesced to the claim or failed to object to the failure to
plead
fees — Failure to plead entitlement to attorney’s fees — Exception to
requirement that party must plead entitlement to attorney’s fees — Defendant
waived objection to failure to plead claim for attorney’s fees where defendant
had notice that plaintiff claimed entitlement to fees and by its conduct
recognized or acquiesced to the claim or failed to object to the failure to
plead
MARGARET
L. ZURRO, Appellant/Cross-Appellee, v. WELLS FARGO BANK, N.A.,
Appellee/Cross-Appellant. 2nd District. Case No. 2D15-175. Opinion filed
November 2, 2016. Appeal from the Circuit Court for Pinellas County; Jack R.
St. Arnold, Judge. Counsel: William Rambaum of William Rambaum, P.A., Oldsmar;
and Kennan G. Dandar of Dandar & Dandar, P.A., Tampa, for
Appellant/Cross-Appellee. Ronald D. Edwards, Jr. and Matthew G. Brenner of
Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for
Appellee/Cross-Appellant.
L. ZURRO, Appellant/Cross-Appellee, v. WELLS FARGO BANK, N.A.,
Appellee/Cross-Appellant. 2nd District. Case No. 2D15-175. Opinion filed
November 2, 2016. Appeal from the Circuit Court for Pinellas County; Jack R.
St. Arnold, Judge. Counsel: William Rambaum of William Rambaum, P.A., Oldsmar;
and Kennan G. Dandar of Dandar & Dandar, P.A., Tampa, for
Appellant/Cross-Appellee. Ronald D. Edwards, Jr. and Matthew G. Brenner of
Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for
Appellee/Cross-Appellant.
(BLACK,
Judge.) Margaret Zurro appeals from the final judgment entered in her lawsuit
against Wells Fargo Bank, N.A. Wells Fargo cross-appeals. We affirm on all
issues, save one: the trial court’s determination that Ms. Zurro is not
entitled to an award of attorney’s fees. We therefore reverse that portion of
the final judgment which denies Ms. Zurro’s attorney’s fees claim.
Judge.) Margaret Zurro appeals from the final judgment entered in her lawsuit
against Wells Fargo Bank, N.A. Wells Fargo cross-appeals. We affirm on all
issues, save one: the trial court’s determination that Ms. Zurro is not
entitled to an award of attorney’s fees. We therefore reverse that portion of
the final judgment which denies Ms. Zurro’s attorney’s fees claim.
I.
Background
Background
Ms.
Zurro’s original complaint, filed in December 2011, set forth two claims: a
count for civil theft (count I) and a count for conversion (count II). Count I
included an allegation that, as a result of Wells Fargo’s actions, Ms. Zurro
had been required to obtain counsel and was obligated to pay counsel a
reasonable fee and that Wells Fargo was liable for Ms. Zurro’s attorney’s fees
pursuant to section 772.11, Florida Statutes (2011). The “Wherefore” clause or
prayer for relief of count I also demanded attorney’s fees. Count II did not
include an allegation regarding procurement of counsel or otherwise demand
fees.
Zurro’s original complaint, filed in December 2011, set forth two claims: a
count for civil theft (count I) and a count for conversion (count II). Count I
included an allegation that, as a result of Wells Fargo’s actions, Ms. Zurro
had been required to obtain counsel and was obligated to pay counsel a
reasonable fee and that Wells Fargo was liable for Ms. Zurro’s attorney’s fees
pursuant to section 772.11, Florida Statutes (2011). The “Wherefore” clause or
prayer for relief of count I also demanded attorney’s fees. Count II did not
include an allegation regarding procurement of counsel or otherwise demand
fees.
In
May 2013, the complaint was amended by stipulation of the parties and a count
for breach of contract (count III) was added. Count III did not include a
demand for attorney’s fees in its prayer for relief; it did, however, set forth
an allegation that Ms. Zurro had been required to obtain counsel and was
obligated to pay counsel a reasonable fee.
May 2013, the complaint was amended by stipulation of the parties and a count
for breach of contract (count III) was added. Count III did not include a
demand for attorney’s fees in its prayer for relief; it did, however, set forth
an allegation that Ms. Zurro had been required to obtain counsel and was
obligated to pay counsel a reasonable fee.
Three
months later, in August 2013, Ms. Zurro moved to file a second amended
complaint, seeking to add a claim for punitive damages to count II and to add
the inadvertently omitted demand for attorney’s fees in the Wherefore clause of
count III. An amended motion to file a second amended complaint was filed in
January 2014. Wells Fargo filed no response to either motion.
months later, in August 2013, Ms. Zurro moved to file a second amended
complaint, seeking to add a claim for punitive damages to count II and to add
the inadvertently omitted demand for attorney’s fees in the Wherefore clause of
count III. An amended motion to file a second amended complaint was filed in
January 2014. Wells Fargo filed no response to either motion.
On
February 25, 2014, about one week before the trial date, a hearing was held on
Ms. Zurro’s motions. There is no transcript of that hearing, but based on the
order denying the motions to amend — entered on the same day as the final judgment,
almost nine months after the hearing — both parties’ correspondence to the
trial court, and the arguments before this court, it is apparent that neither
the parties nor the court addressed the attorney’s fee issue at the hearing.
The court orally denied the request to add a punitive damages claim to count
II.
February 25, 2014, about one week before the trial date, a hearing was held on
Ms. Zurro’s motions. There is no transcript of that hearing, but based on the
order denying the motions to amend — entered on the same day as the final judgment,
almost nine months after the hearing — both parties’ correspondence to the
trial court, and the arguments before this court, it is apparent that neither
the parties nor the court addressed the attorney’s fee issue at the hearing.
The court orally denied the request to add a punitive damages claim to count
II.
The
case proceeded to a bench trial in early March 2014. On the final day of trial,
the court made oral findings and requested that both parties submit proposed
orders consistent with the court’s findings. The court did not identify the
counts for which it was ruling in favor of Ms. Zurro, nor did it address
attorney’s fees. As a result, the parties’ proposed orders differed as to the
counts on which Ms. Zurro had prevailed. Significantly, along with her proposed
order Ms. Zurro included a cover letter to the court which addressed attorney’s
fees:
case proceeded to a bench trial in early March 2014. On the final day of trial,
the court made oral findings and requested that both parties submit proposed
orders consistent with the court’s findings. The court did not identify the
counts for which it was ruling in favor of Ms. Zurro, nor did it address
attorney’s fees. As a result, the parties’ proposed orders differed as to the
counts on which Ms. Zurro had prevailed. Significantly, along with her proposed
order Ms. Zurro included a cover letter to the court which addressed attorney’s
fees:
There was no ruling on the
claims for attorney fees . . . and I assumed that that would be addressed by
later Motions. If you prefer to make a preliminary ruling on entitlement to
attorney fees, I submit the following language for inclusion in the Order:
claims for attorney fees . . . and I assumed that that would be addressed by
later Motions. If you prefer to make a preliminary ruling on entitlement to
attorney fees, I submit the following language for inclusion in the Order:
Paragraph 29 of the Wachovia
Bank Deposit Agreement provides that the depositor must reimburse Wachovia Bank
for Wachovia Bank’s costs and expenses (including attorney fees) in any action
in which Wachovia Bank is the prevailing party. The Plaintiff is the prevailing
party for purposes of this provision. Florida Statutes Section 57.105(7)
provides for the reciprocal recovery of attorney fees. If a contract contains a
provision allowing attorney fees to a party when he or she is required to take
any action to enforce the contract, the court must also allow reasonable
attorney fees to the other party when that party prevails in any action,
whether as plaintiff or defendant with respect to the contract. Accordingly,
the plaintiff shall be entitled to recover her attorney fees in this action.
Bank Deposit Agreement provides that the depositor must reimburse Wachovia Bank
for Wachovia Bank’s costs and expenses (including attorney fees) in any action
in which Wachovia Bank is the prevailing party. The Plaintiff is the prevailing
party for purposes of this provision. Florida Statutes Section 57.105(7)
provides for the reciprocal recovery of attorney fees. If a contract contains a
provision allowing attorney fees to a party when he or she is required to take
any action to enforce the contract, the court must also allow reasonable
attorney fees to the other party when that party prevails in any action,
whether as plaintiff or defendant with respect to the contract. Accordingly,
the plaintiff shall be entitled to recover her attorney fees in this action.
Wells
Fargo also submitted a proposed final judgment and cover letter. It did not
raise the issue of Ms. Zurro’s alleged pleading deficiency in response to her
proposed final judgment and cover letter. Rather, it proposed that the court
reserve jurisdiction to hear any fee motions.
Fargo also submitted a proposed final judgment and cover letter. It did not
raise the issue of Ms. Zurro’s alleged pleading deficiency in response to her
proposed final judgment and cover letter. Rather, it proposed that the court
reserve jurisdiction to hear any fee motions.
Thereafter,
the court entered an Order on Findings of Fact and Conclusions of Law, wherein
the court found in favor of Wells Fargo on count I and in favor of Ms. Zurro on
counts II and III. The court stated that it would consider any properly filed
motions for attorney’s fees and costs. The Order did not otherwise address
attorney’s fees. Both parties subsequently filed motions for reconsideration.
In its motion, Wells Fargo alleged that Ms. Zurro had made it “abundantly
clear” that attorney’s fees were the driving force behind her claims. Both
parties also filed motions for determination of entitlement to attorney’s fees
and costs.
the court entered an Order on Findings of Fact and Conclusions of Law, wherein
the court found in favor of Wells Fargo on count I and in favor of Ms. Zurro on
counts II and III. The court stated that it would consider any properly filed
motions for attorney’s fees and costs. The Order did not otherwise address
attorney’s fees. Both parties subsequently filed motions for reconsideration.
In its motion, Wells Fargo alleged that Ms. Zurro had made it “abundantly
clear” that attorney’s fees were the driving force behind her claims. Both
parties also filed motions for determination of entitlement to attorney’s fees
and costs.
The
fee motions were heard September 16, 2014. At that hearing, for the first time,
Wells Fargo raised its argument that Ms. Zurro was not entitled to fees on
count III because she had not demanded them in the Wherefore clause of the
claim. Ms. Zurro verbally sought permission to amend count III to conform to
the evidence presented at trial, but the motion was denied. The day after the
hearing, Ms. Zurro submitted correspondence to the court wherein she reminded
the court that the August 2013 motion to amend the complaint included the
request to amend the Wherefore clause of count III, that Wells Fargo had not
objected to the addition of the demand for fees, that the court had not ruled
upon the request to amend the Wherefore clause at the hearing on the motions to
amend, and that no written order on the motion had been entered. Ms. Zurro
further argued that the exception to the rule that claims for attorney’s fees
must be pleaded, as announced in Stockman v. Downs, 573 So. 2d 835 (Fla.
1991), was applicable to her case.
fee motions were heard September 16, 2014. At that hearing, for the first time,
Wells Fargo raised its argument that Ms. Zurro was not entitled to fees on
count III because she had not demanded them in the Wherefore clause of the
claim. Ms. Zurro verbally sought permission to amend count III to conform to
the evidence presented at trial, but the motion was denied. The day after the
hearing, Ms. Zurro submitted correspondence to the court wherein she reminded
the court that the August 2013 motion to amend the complaint included the
request to amend the Wherefore clause of count III, that Wells Fargo had not
objected to the addition of the demand for fees, that the court had not ruled
upon the request to amend the Wherefore clause at the hearing on the motions to
amend, and that no written order on the motion had been entered. Ms. Zurro
further argued that the exception to the rule that claims for attorney’s fees
must be pleaded, as announced in Stockman v. Downs, 573 So. 2d 835 (Fla.
1991), was applicable to her case.
On
November 10, 2014, eight months following the trial, the court entered three
orders: (1) the order denying Ms. Zurro’s motion for reconsideration, granting
her motion for clarification, granting Wells Fargo’s motion for clarification
and motion for reconsideration, denying Wells Fargo’s motion for rehearing, and
vacating the Order of Findings of Fact and Conclusions of Law; (2) the order
denying Ms. Zurro’s motions to file a second amended complaint; and (3) the
final judgment.
November 10, 2014, eight months following the trial, the court entered three
orders: (1) the order denying Ms. Zurro’s motion for reconsideration, granting
her motion for clarification, granting Wells Fargo’s motion for clarification
and motion for reconsideration, denying Wells Fargo’s motion for rehearing, and
vacating the Order of Findings of Fact and Conclusions of Law; (2) the order
denying Ms. Zurro’s motions to file a second amended complaint; and (3) the
final judgment.
The
order denying Ms. Zurro’s motions to file a second amended complaint provides
that the court previously orally denied the request to add a claim for punitive
damages and that because Ms. Zurro presented no argument concerning her request
to add a specific demand for attorney’s fees to the Wherefore clause of count
III, the argument had been waived.
order denying Ms. Zurro’s motions to file a second amended complaint provides
that the court previously orally denied the request to add a claim for punitive
damages and that because Ms. Zurro presented no argument concerning her request
to add a specific demand for attorney’s fees to the Wherefore clause of count
III, the argument had been waived.
Without
elaboration, the final judgment provides both that Ms. Zurro was permitted to
amend the Wherefore clause of count III to include a demand for attorney’s fees
and that Ms. Zurro is not entitled to attorney’s fees because there was no
request for attorney’s fees in count III. Both parties filed motions for
rehearing which were denied.1 This appeal followed.
elaboration, the final judgment provides both that Ms. Zurro was permitted to
amend the Wherefore clause of count III to include a demand for attorney’s fees
and that Ms. Zurro is not entitled to attorney’s fees because there was no
request for attorney’s fees in count III. Both parties filed motions for
rehearing which were denied.1 This appeal followed.
II.
Analysis
Analysis
The
fundamental concern with regard to claims for attorney’s fees is notice. Stockman,
573 So. 2d at 837. Therefore, “a claim for attorney’s fees, whether based on
statute or contract, must be pled” in order “to notify the opposing party of
the claims alleged and prevent unfair surprise.” Id. “A party should not
have to speculate throughout the entire course of an action about what claims
ultimately may be alleged against him.” Id. However, the Stockman
court announced an exception to the general rule: “[w]here a party has notice
that an opponent claims entitlement to attorney’s fees, and by its conduct
recognizes or acquiesces to that claim or otherwise fails to object to the
failure to plead entitlement, that party waives any objection to the failure to
plead a claim for attorney’s fees.” Id. at 838.
fundamental concern with regard to claims for attorney’s fees is notice. Stockman,
573 So. 2d at 837. Therefore, “a claim for attorney’s fees, whether based on
statute or contract, must be pled” in order “to notify the opposing party of
the claims alleged and prevent unfair surprise.” Id. “A party should not
have to speculate throughout the entire course of an action about what claims
ultimately may be alleged against him.” Id. However, the Stockman
court announced an exception to the general rule: “[w]here a party has notice
that an opponent claims entitlement to attorney’s fees, and by its conduct
recognizes or acquiesces to that claim or otherwise fails to object to the
failure to plead entitlement, that party waives any objection to the failure to
plead a claim for attorney’s fees.” Id. at 838.
We
resolve this appeal on the basis of the Stockman exception. Wells Fargo
was on notice of Ms. Zurro’s claim for entitlement to attorney’s fees well
before trial. Wells Fargo cannot justifiably argue otherwise. All three counts
of the complaint alleged that Ms. Zurro had been required to obtain counsel and
that she was obligated to pay counsel a reasonable fee, and count I included an
express demand for fees.2 Further, Ms. Zurro’s claim for
attorney’s fees was before the court prior to final judgment, and the record
establishes that prior to entry of the final judgment the court had not ruled
upon Ms. Zurro’s request to add the express demand for attorney’s fees in the
Wherefore clause of count III.3 Cf. Stockman, 573 So.
2d at 838 (finding the exception to the pleading requirement inapplicable where
the “claim for attorney’s fees was not before the court prior to final
judgment”). Moreover, Wells Fargo did not object to Ms. Zurro’s request to
amend count III or to her statement regarding entitlement to fees in
correspondence to the court attaching her proposed order of findings of fact
and conclusions of law. The issue of attorney’s fees was clearly in play at the
time of trial. Cf. BMR Funding, LLC v. DDR Corp., 67 So. 3d 1137,
1141 (Fla. 2d DCA 2011) (quoting Sardon Found. v. New Horizons Serv. Dogs,
Inc., 852 So. 2d 416, 421 (Fla. 5th DCA 2003)). Any argument by Wells Fargo
to the contrary is disingenuous, as established by its posttrial arguments. In
its motion for reconsideration following the court’s Order of Findings of Fact
and Conclusions of Law, Wells Fargo alleged that Ms. Zurro had made it
“abundantly clear” that attorney’s fees were the driving force behind her
claims. Cf. Stockman, 573 So. 2d at 838 (“There was no action or
inaction on Stockman’s part that can be deemed to be a recognition of the fact
that the Downses intended to claim attorney’s fees or a waiver of objection to
their failure to plead such a claim.”). As such, Wells Fargo, “at all pertinent
times knew, recognized and acquiesced, without objection or suggestion of
surprise, prejudice or disaccommodation,” that Ms. Zurro was claiming
entitlement to attorney’s fees. See Brown v. Gardens by the Sea S.
Condo. Ass’n, 424 So. 2d 181, 183 (Fla. 4th DCA 1983), cited with
approval in Stockman, 573 So. 2d at 838; see also Auglink
Commc’ns, Inc. v. Canevari, 932 So. 2d 338, 341 (Fla. 5th DCA 2006)
(applying the Stockman exception where it was “abundantly clear that
there was no surprise caused by Canevari’s failure to plead entitlement to
attorneys’ fees in his answer”).
resolve this appeal on the basis of the Stockman exception. Wells Fargo
was on notice of Ms. Zurro’s claim for entitlement to attorney’s fees well
before trial. Wells Fargo cannot justifiably argue otherwise. All three counts
of the complaint alleged that Ms. Zurro had been required to obtain counsel and
that she was obligated to pay counsel a reasonable fee, and count I included an
express demand for fees.2 Further, Ms. Zurro’s claim for
attorney’s fees was before the court prior to final judgment, and the record
establishes that prior to entry of the final judgment the court had not ruled
upon Ms. Zurro’s request to add the express demand for attorney’s fees in the
Wherefore clause of count III.3 Cf. Stockman, 573 So.
2d at 838 (finding the exception to the pleading requirement inapplicable where
the “claim for attorney’s fees was not before the court prior to final
judgment”). Moreover, Wells Fargo did not object to Ms. Zurro’s request to
amend count III or to her statement regarding entitlement to fees in
correspondence to the court attaching her proposed order of findings of fact
and conclusions of law. The issue of attorney’s fees was clearly in play at the
time of trial. Cf. BMR Funding, LLC v. DDR Corp., 67 So. 3d 1137,
1141 (Fla. 2d DCA 2011) (quoting Sardon Found. v. New Horizons Serv. Dogs,
Inc., 852 So. 2d 416, 421 (Fla. 5th DCA 2003)). Any argument by Wells Fargo
to the contrary is disingenuous, as established by its posttrial arguments. In
its motion for reconsideration following the court’s Order of Findings of Fact
and Conclusions of Law, Wells Fargo alleged that Ms. Zurro had made it
“abundantly clear” that attorney’s fees were the driving force behind her
claims. Cf. Stockman, 573 So. 2d at 838 (“There was no action or
inaction on Stockman’s part that can be deemed to be a recognition of the fact
that the Downses intended to claim attorney’s fees or a waiver of objection to
their failure to plead such a claim.”). As such, Wells Fargo, “at all pertinent
times knew, recognized and acquiesced, without objection or suggestion of
surprise, prejudice or disaccommodation,” that Ms. Zurro was claiming
entitlement to attorney’s fees. See Brown v. Gardens by the Sea S.
Condo. Ass’n, 424 So. 2d 181, 183 (Fla. 4th DCA 1983), cited with
approval in Stockman, 573 So. 2d at 838; see also Auglink
Commc’ns, Inc. v. Canevari, 932 So. 2d 338, 341 (Fla. 5th DCA 2006)
(applying the Stockman exception where it was “abundantly clear that
there was no surprise caused by Canevari’s failure to plead entitlement to
attorneys’ fees in his answer”).
III.
Conclusion
Conclusion
The
court erred in finding that Ms. Zurro was not entitled to attorney’s fees; the Stockman
exception to the failure to plead a claim for attorney’s fees is applicable.
Consequently, we reverse that portion of the final judgment which denies Ms.
Zurro’s claim for fees and remand for proceedings consistent with this opinion.
court erred in finding that Ms. Zurro was not entitled to attorney’s fees; the Stockman
exception to the failure to plead a claim for attorney’s fees is applicable.
Consequently, we reverse that portion of the final judgment which denies Ms.
Zurro’s claim for fees and remand for proceedings consistent with this opinion.
Affirmed
in part; reversed in part; remanded. (WALLACE and LUCAS, JJ., Concur.)
in part; reversed in part; remanded. (WALLACE and LUCAS, JJ., Concur.)
__________________
1Neither
party’s motion addressed the internal inconsistency of the final judgment with
regard to attorney’s fees.
party’s motion addressed the internal inconsistency of the final judgment with
regard to attorney’s fees.
2We
recognize that American Express Bank International v. Inverpan, S.A.,
972 So. 2d 269, 270 (Fla. 3d DCA 2008), holds that the allegation in a
complaint that the plaintiff had retained counsel and was obligated to pay fees
to counsel failed to “plead specifically a request for attorney’s fees.”
However, unlike our case, Inverpan involved an amended single-count
complaint with no prayer for attorney’s fees where no further amendment was
sought. Cf. Fanelli v. HSBC Bank USA, 170 So. 3d 72, 73 (Fla. 4th
DCA 2015) (“If the purpose of the Stockman pleading requirement is to
give notice to an opposing party, a sentence in a mortgage foreclosure pleading
stating that a party has hired attorneys and is obligated to pay a reasonable
fee for their services is sufficient to alert the other side that attorney’s
fees might come into play.”).
recognize that American Express Bank International v. Inverpan, S.A.,
972 So. 2d 269, 270 (Fla. 3d DCA 2008), holds that the allegation in a
complaint that the plaintiff had retained counsel and was obligated to pay fees
to counsel failed to “plead specifically a request for attorney’s fees.”
However, unlike our case, Inverpan involved an amended single-count
complaint with no prayer for attorney’s fees where no further amendment was
sought. Cf. Fanelli v. HSBC Bank USA, 170 So. 3d 72, 73 (Fla. 4th
DCA 2015) (“If the purpose of the Stockman pleading requirement is to
give notice to an opposing party, a sentence in a mortgage foreclosure pleading
stating that a party has hired attorneys and is obligated to pay a reasonable
fee for their services is sufficient to alert the other side that attorney’s
fees might come into play.”).
3Ms.
Zurro clearly sought to comply with the pleading requirement of Stockman
by moving to amend her complaint. See, e.g., BMR Funding, LLC v. DDR
Corp., 67 So. 3d 1137, 1140 (Fla. 2d DCA 2011) (“[T]he phrase ‘must be
pled’ [in Stockman] is to be construed in accord with the Florida Rules
of Civil Procedure. Complaints, answers, and counterclaims are pleadings
pursuant to Florida Rule of Civil Procedure 1.100(a).” (alteration in original)
(quoting Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1263
(Fla. 1988))). The court’s apparent failure to rule on Ms. Zurro’s request to
amend count III to include a demand for attorney’s fees in the Wherefore clause
prior to trial serves to preclude a waiver determination and to further
disprove any lack of notice argument by Wells Fargo. See Brown v.
Gardens by the Sea S. Condo. Ass’n, 424 So. 2d 181, 184 (Fla. 4th DCA 1983)
(“As matters stood, appellants were affirmatively lulled into believing that
their claim was known, alive, and that same would be adjudicated.”), cited
with approval in Stockman, 573 So. 2d at 838.
Zurro clearly sought to comply with the pleading requirement of Stockman
by moving to amend her complaint. See, e.g., BMR Funding, LLC v. DDR
Corp., 67 So. 3d 1137, 1140 (Fla. 2d DCA 2011) (“[T]he phrase ‘must be
pled’ [in Stockman] is to be construed in accord with the Florida Rules
of Civil Procedure. Complaints, answers, and counterclaims are pleadings
pursuant to Florida Rule of Civil Procedure 1.100(a).” (alteration in original)
(quoting Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1263
(Fla. 1988))). The court’s apparent failure to rule on Ms. Zurro’s request to
amend count III to include a demand for attorney’s fees in the Wherefore clause
prior to trial serves to preclude a waiver determination and to further
disprove any lack of notice argument by Wells Fargo. See Brown v.
Gardens by the Sea S. Condo. Ass’n, 424 So. 2d 181, 184 (Fla. 4th DCA 1983)
(“As matters stood, appellants were affirmatively lulled into believing that
their claim was known, alive, and that same would be adjudicated.”), cited
with approval in Stockman, 573 So. 2d at 838.
* * *