Florida litigants must have a contractual or statutory basis for a claim for attorney's fees and are required, under the "Stockman Rule," to notify the other side of the intent to pursue fees. But what if the entitlement to attorney's fees did *not* exist at the outset of the dispute and only arose during the course of litigation? In this case, there was no basis for attorney's fees until the court sent the matter to non-binding arbitration, the losing party sought trial de novo, and lost. Then fees were available under Florida Statute, Chapter 44. Is there an exception to the Stockman Rule?

The decision of Jeffrey W. Cooper v. Marriott International Inc. and Central Parking System of Florida, Inc. toys with the idea of an exception but ultimately rules that the opposing side was properly on notice under the existing Stockman Rule. The dissent offers some conservative advice on seeking fees when the trial court orders parties to non-binding arbitration under Florida Statute 44.103.

In this case, the parties were ordered to non-binding arbitration by the court and, after an award, one side still sought trial de novo. Under the statute, if the recovery was not sufficient, the losing party who asked for trial de novo could be exposed to fees. They claimed the prevailing party waived that right by not asking for them.

We've discussed the general Stockman rule above, and here in this prior post. It is worth noting that a party need not set out the specific statutory or contractual basis for fees, as long as they clearly make the claim to put the other side on notice.

Here, the Panel (Gerber, Hazouri and Farmer) held that there was sufficient notice after trial since the party seeking fees filed a motion for entitlement, submitted a proposed judgment with fees, and proposed an order on entitlement. For what it is worth, this is the first opinion involving arbitration penned by new appellate court judge Gerber. In Judge Farmer's dissent, he voiced concerns that this was not notice which satisfied the Stockman concerns and, instead, recommended that parties file notices of intent to seek fees as soon as the trial court order non-binding arbitration.