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So How Many Pleadings Are There? Really? By Kelly A. Karstaedt, Esq.

A recent conversation with another civil litigation attorney about a hearing on attorneys fees prompted me to remember the good old days of law school when I first learned about pleadings. I realized that, had I not had newly sworn in criminal Judge Tyrie Boyer as a professor of Florida Rules of Civil Procedure, I might have become one of the misinformed masses. I never realized just how many attorneys do not know the difference between a pleading, a motion and any other court filing. I am here to dispel any myths about what is and is not a pleading and hopefully provide some much needed information to those attorneys who might still think any document filed with the court is a pleading. Not too many years ago, I sat in a small classroom before Judge Boyer attempting to learn everything I needed to know about the Florida Rules of Civil Procedure to successfully pass the bar exam. One outstanding memory from that class was the chanting. Yes, I said chanting. Every class, or at least it seemed like every class, the entire room of students would be required to chant the names of the twelve pleadings. Indeed, the correct number of pleadings that exist under the rules is only twelve! I refer to you Rule 1.100(a) of the Florida Rules of Civil Procedure entitled Pleadings. This section states: There shall be a complaint or, when so designated by a statute or rule, a petition, and an answer to it; an answer to a counterclaim denominated as such; an answer to a crossclaim if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or thirdparty answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed (emphasis added). Now, it seems obvious from this language, especially the last sentence of the section, that the documents referenced in this section are the only documents that can correctly be referred to as a pleading. When you count them up, only twelve. No more and no less. So, where does all this confusion come from then? I wonder why there are so many attorneys that do not realize that only twelve pleadings exist under the rules and every other court filing must be given some other name. I assume it comes from the natural practice of consistency. It is easier to refer to every document filed with the court by one name and the word pleading just fell into common usage. The problem with this common usage is that sometimes attorneys will attempt to turn a document other than one contained in Rule 1.100(a) into a pleading. That can become a real issue in cases where the outcome is dependent on whether the argument was properly raised in a pleading. For example, the hearing on attorneys fees I mentioned earlier centered around an alleged claim for fees that was made in a motion for summary judgment. In this particular matter, the Defendant filed an answer which denied the allegations of the complaint but did not make a claim for attorneys fees. Later, Defendant filed and won on a motion for summary

judgment. The motion for summary judgment contained a demand for judgment which included costs and attorneys fees. After winning on summary judgment, the attorney filed a claim for prevailing party attorneys fees. During the hearing, Plaintiff brought to the courts attention the fact that the claim for attorneys fees was not made in a pleading. The Supreme Court of Florida requires that attorneys fees, whether based on statute or contract, must be pled (emphasis added). Stockman v. Downs, 573 So.2d 835, 837 (Fla. 1991). The purpose of pleading attorneys fees is to provide adequate notice to the opposing party and to prevent unfair surprise. Id. The Supreme Court of Florida expanded on this holding by stating that a claim for fees must be pled, and if not pled it is waived. Caufield v. Cantele, 837 So.2d 371, 377 (Fla. 2002). The Court stated that pleading a claim for fees puts the other party on sufficient notice and allows it the opportunity to consider the claim and whether to proceed on it. Id at 378. Further, a claim for fees need not state the specific contractual or statutory basis for the claim and failure to so specifically plead does not waive the right to fees. Id. This particular matter stresses the importance in understanding the difference between a pleading and another type of court filing. Defendants claim for attorneys fees was denied based solely on the fact that the claim for fees was made in a motion for summary judgment, which is not a pleading under the rules. So, even though the Defendant was the prevailing party, it was unable to recover any attorneys fees because counsel did not understand that a motion is not a pleading. I think the important lesson we can learn here is that the language of the rules are very specific and we need to make sure we completely understand their construction, regardless of the common usage we apply to certain terms. I am certain that confusion over what is and what is not a pleading has been argued in more cases than we as a legal community would like to admit. So, long story short, there are twelve, and only twelve, pleadings. Chant them with me: complaintanswerreply to answer