Van Vechten v. Anyzeski

Van Vechten v. Anyzeski, 157 So.3d 350 (Fla. 4th DCA), 2015 WL 248731

This appeal centered around two probate court orders- an order denying a trustee's motion for attorney's fees and an order compelling a distribution from the trust to the beneficiary's estate without offsetting the trustee's attorney's fees.  The trustee argued that she had both adequately plead her entitlement to attorney's fees and that the court erred in finding that the beneficiary's estate did not waive its objection to her alleged inadequate pleading of an entitlement to attorney's fees.

The Court held that the beneficiary's estate did waive its objection to the trustee's alleged inadequate pleading of her entitlement to attorney's fees.  It noted that generally, a claim for attorney's fees, whether based on statute or contract, must be pled.  However, where a party has notice that its 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. Here, the parties entered into a pretrial stipulation which specifically addressed the issue of entitlement to attorney's fees.  Thus, the beneficiary had notice that the trustee was claiming an entitlement to attorney's fees, and waived any objection to the trustee's alleged inadequate pleading of an entitlement to fees. 

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