DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JACKSON PADGETT and MARK NEGRETE,

Appellants,

v.

GEORGE L. KESSINGER, ADAM BURNETT, TERRY L. NORMAN and 

RONALD F. GOFRANK,

Appellees.

No. 4D14-229

[ April 8, 2015 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. 

CACE10036263.

Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., 

Weston, for appellants.

No appearance for appellees.

TAYLOR, J.

The issue in this appeal is whether the trial court abused its discretion 

in failing to find that appellants, Jackson Padgett and Mark Negrete, were 

prevailing parties in this breach of contract case and thus entitled to 

attorney’s fees. We hold that because appellants prevailed on the breach 

of contract claim, which was separate and distinct from the fraudulent 

inducement claim on which they did not prevail, appellants are entitled to 

prevailing party attorney’s fees for defending the contract claim.

Appellants were the buyers of a restaurant business. Appellee Norman 

was one of the sellers.1 The agreement for the sale of the business 

contained a prevailing party attorney’s fees provision.

Norman sued the buyers for breach of contract, claiming that he was 

1 The remaining appellees were the other sellers of the business. They are only 

nominally parties to this appeal, as they entered into a settlement agreement 

early in the litigation.
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owed additional sums under the contract. The buyers answered the 

complaint and brought a counterclaim for fraudulent inducement, 

requesting attorney’s fees in both their answer and their counterclaim. 

Norman answered the counterclaim, but his answer did not include a 

request for attorney’s fees.

The trial court entered summary judgment against Norman on his 

claim for breach of contract. The trial court then held a bench trial, found 

that Norman was liable for fraudulent inducement, and entered a final 

judgment in favor of the buyers on their counterclaim.

Norman appealed the summary judgment on the contract claim and 

the final judgment on the counterclaim. On appeal, we affirmed the 

summary judgment against Norman on his claim for breach of contract, 

but reversed the final judgment in favor of the buyers on their 

counterclaim for fraudulent inducement. See Norman v. Padgett, 125 So. 

3d 977 (Fla. 4th DCA 2013). We held as a matter of law that Norman was 

not liable for fraudulent misrepresentation, and we remanded for entry of 

judgment in favor of Norman on the buyers’ counterclaim. Id. at 978.

Meanwhile, during the pendency of the appeal, the trial court entered 

an Amended Final Judgment which included an award of fees and costs 

in favor of the buyers. After reversal of the counterclaim judgment, 

Norman moved to vacate the judgments entered in the case. Norman also 

moved for an award of attorney’s fees and costs, claiming that he was the 

prevailing party in the action.

The buyers responded with a Memorandum on Entitlement and Award 

of Attorney’s Fees and Costs, contending that they alone were entitled to 

attorney’s fees. They argued that because they prevailed on the breach of 

contract claim, they were entitled to fees. The buyers further argued that 

(1) Norman was not the prevailing party overall, and (2) Norman failed to 

plead entitlement to attorney’s fees and costs in his answer to the 

counterclaim.

The trial court entered an order vacating the previous judgments in the 

case and declining to award fees to either side. The court determined that 

the buyers prevailed on Norman’s breach of contract claim, and that 

Norman prevailed on the buyers’ counterclaim for fraudulent inducement. 

The court reasoned that the parties essentially “battled to a draw” and that 

“neither party prevailed in this case.” The court later entered a final 

judgment consistent with these findings. The buyers appealed.

The standard of review applicable to a trial court’s ruling on the issue 
3

of prevailing party attorney’s fees is abuse of discretion. Shands Teaching 

Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 213 (Fla. 

2012).

The “prevailing party” is the party that prevails on the significant issues 

in the litigation. Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 

1992). Absent compelling circumstances, one party must prevail in a 

breach of contract action. Newton v. Tenney, 122 So. 3d 390, 392 (Fla. 

4th DCA 2013).

In a case with multiple claims, “where each claim is separate and 

distinct and would support an independent action, as opposed to being an 

alternative theory of liability for the same wrong, the prevailing party on 

each distinct claim is entitled to an award of attorney’s fees for those fees 

generated in connection with that claim.” Folta v. Bolton, 493 So. 2d 440, 

442 (Fla. 1986). Claims are separate and distinct if “they could support 

an independent action and are not simply alternative theories of liability 

for the same wrong.” Avatar Dev. Corp. v. DePani Constr., Inc., 883 So. 2d 

344, 346 (Fla. 4th DCA 2004). Claims for breach of contract and fraud in 

the inducement are separate and distinct for purposes of awarding 

attorney’s fees. See Effective Teleservices, Inc. v. Smith, 132 So. 3d 335, 

337, 340-41 (Fla. 4th DCA 2014) (claims for breach of employment 

agreement and fraud in the inducement were separate and distinct).

Here, the trial court abused its discretion in denying prevailing party 

fees to the buyers regarding their defense of Norman’s breach of contract 

claim. Although the buyers did not prevail on their fraudulent inducement 

claim, the buyers did prevail on Norman’s breach of contract claim against 

them. Because the breach of contract claim is separate and distinct from 

the fraudulent inducement counterclaim, the buyers are entitled to 

attorney’s fees incurred in successfully defending the breach of contract 

claim.

Moreover, even though Norman prevailed on the buyers’ fraudulent 

inducement counterclaim, Norman did not request fees when he answered 

the counterclaim. The buyers objected to Norman’s recovering attorney’s 

fees since he failed to plead entitlement to fees in his answer to the 

counterclaim. We agree that by failing to plead entitlement to fees in his 

answer to the counterclaim, Norman waived any claim to fees in defending 

the counterclaim. See Stockman v. Downs, 573 So. 2d 835, 837-38 (Fla. 

1991) (a claim for attorney’s fees must be pled, and a party’s failure to do

so constitutes a waiver of the claim unless the other party acquiesces to 

the claim or otherwise fails to object to the failure to plead entitlement); 

Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 711 (Fla. 4th 
4

DCA 2002) (“[A] party may not recover attorney’s fees unless he has put 

the issue into play by filing a pleading seeking fees.”).

Accordingly, we reverse the denial of attorney’s fees to the buyers for 

their defense of Norman’s claim for breach of contract and remand for 

further proceedings.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.