Attorney’s fees — Offer of judgment — Trial court properly concluded that offer of judgment statute applied, although plaintiffs sought both damages and equitable relief in form of permanent injunction

Attorney’s
fees — Offer of judgment — Trial court properly concluded that offer of
judgment statute applied, although plaintiffs sought both damages and equitable
relief in form of permanent injunction, where offer was specifically limited to
money damages and specifically stated that if offer were accepted, claims for
money damages would be resolved, but claims for injunctive relief would remain
pending

MYD MARINE DISTRIBUTOR, INC., a Florida corporation, MYD
MARINE DISTRIBUTOR, INC., a California corporation, and MYD MID-ATLANTIC, INC.,
a Maryland corporation, Appellants, v. INTERNATIONAL PAINT LTD., INTERNATIONAL
PAINT LLC, DONOVAN MARINE, INC., EAST COAST MARINE DISTRIBUTORS, INC., LAND ‘N’
SEA DISTRIBUTING, INC., and MERRITT MARINE SUPPLY, INC., Appellees. 4th
District. Case Nos. 4D13-2496, 4D13-2671, 4D13-3685, 4D13-4530, 4D13-4779.
April 13, 2016. Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jeffrey E. Streitfeld, Judge; L.T. Case No.
08-62407 (07). Counsel: Scott E. Perwin of Kenny Nachwalter, P.A., Miami, for
appellants. Charles M. Rosenberg of Carlton Fields Jorden Burt, P.A., Miami,
for appellees International Paint Ltd. and International Paint, LLC; A. Rodger
Traynor, Jr. and Lawrence D. Silverman of Akerman LLP, Miami, for appellee
Donovan Marine, Inc.; Charles A. Morehead, III of Abramowitz, Pomerantz &
Morehead, P.A., Sunrise, for appellee East Coast Marine Distributors, Inc.

(DAMOORGIAN, J.) MYD Marine Distributor, Inc. and MYD
Mid-Atlantic, Inc. (collectively referred to as “MYD”) appeal five final
judgments awarding costs and attorney’s fees to Appellees, International Paint
LLC and International Paint, Ltd. (collectively referred to as “International
Paint”), Donovan Marine, Inc. (“Donovan”), and East Coast Marine Distributors,
Inc. d/b/a Gold Coast Marine Distributor (“Gold Coast”). We affirm.

This case began when MYD filed a lawsuit against Appellees
alleging that they violated state antitrust laws by conspiring to oust MYD as a
distributor of a certain brand of yacht paint and in doing so, “fixed” the
market price of the paint. Specifically, the complaint alleged several causes
of actions for conspiracy in restraint of trade and breach of contract. With
respect to the conspiracy in restraint of trade counts, MYD asked for damages,
costs and fees, and “permanent injunction relief enjoining Defendants from
continuing to engage in their illegal conspiracy.” Appellees ultimately
obtained a summary final judgment the entry of which we affirmed. MYD Marine
Distrib., Inc. v. Int’l Paint Ltd., 151 So. 3d 1263 (Fla. 4th DCA 2014).

Thereafter, Appellees moved for their respective costs and
attorney’s fees. International Paint’s motion for attorney’s fees was based on
rejected offers of judgment it served on each of the MYD entities. Each offer
of judgment contained the following limiting language:

The
Total Amount of this Proposal will be paid by [International Paint] to [MYD] to
settle all claims for money damages asserted or that could have been asserted
by [MYD] against [International Paint] in the above-captioned lawsuit. This
Proposal does not attempt to resolve [MYD’s] claims for injunctive relief, and
if accepted, the claims for money damages will be resolved, but the claims for
injunctive relief will remain pending.

At the hearing on International Paint’s fee motion, MYD
argued that Florida’s offer of judgment statute, section 768.79, did not apply
because MYD sought both damages and equitable relief in the form of a permanent
injunction in its complaint. International Paint countered that its offers were
enforceable because they expressly limited themselves to MYD’s money claims and
MYD never sought any relief on its equitable claim. The court concluded that
the offer of judgment statute applied and awarded Appellees their costs and
attorney’s fees. The court based its decision on the fact that MYD did not
pursue injunctive relief with the trial court and only litigated its money
damages. We affirm the costs awards without further comment, but write to
address International Paint’s attorney’s fee award.

Section 768.79 of the Florida Statutes creates a substantive
right to attorney’s fees when, among other scenarios, a plaintiff refuses to
accept an offer of judgment from the defendant and the ensuing judgment is one
of no liability on the part of the defendant. § 768.79(1), Fla. Stat. (2011).
“The purpose of Section 768.79 is to lead litigants to settle by penalizing
those who decline offers that satisfy the statutory requirements. Encouraging
settlement lowers litigation costs for the parties and reduces the fiscal
impact of litigation on the court system.” Allstate Prop. & Cas. Ins.
Co. v. Lewis, 14 So. 3d 1230, 1235 (Fla. 1st DCA 2009) (citations and
internal quotation marks omitted).

By its own terms, section 768.79 applies only to “civil
action[s] for damages.” See § 768.79(1), Fla. Stat. (2011). Accordingly,
an offer of judgment which purports to resolve all claims is invalid if the
case includes both monetary and nonmonetary causes of action. Diamond
Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, (Fla. 2013). What is
less clear, however, is whether an offer purporting to resolve only monetary
claims in a suit also containing a nonmonetary cause of action is valid. Id.
at 374 (“Florida courts have not decided whether a party may utilize
section 768.79 when he or she has asserted separate claims for monetary and
nonmonetary relief in the same pleading and the opposing party has served an
offer directed specifically to the monetary claim.”). We need not decide this
issue at this juncture as affirmance is warranted based on the trial court’s
finding that the true relief sought by MYD below was monetary in nature.

In Diamond Aircraft, the Florida Supreme Court
approvingly cited to authority suggesting that section 768.79 may be utilized
in a suit seeking monetary and nonmonetary relief if the “true relief” sought
is monetary. Id. at 373. Specifically, it referenced two cases which
were in part filed as declaratory judgment actions: Nelson v. Marine Group
of Palm Beach, Inc., 677 So. 2d 998, 999 (Fla. 4th DCA 1996), and DiPompeo
Construction Corp. v. Kimmel & Associates, 916 So. 2d 17, 17-18 (Fla.
4th DCA 2005). Id. Even though these cases were declaratory in form, the
courts found that the only disputed issues concerned entitlement to money and,
therefore, they were properly characterized as actions seeking only damages. DiPompeo
Constr. Corp., 916 So. 2d at 18; Nelson, 677 So. 2d at 999.

Citing to Diamond Aircraft, the United States Court
of Appeals for the Eleventh Circuit recently rejected a party’s argument “that
attorney’s fees under [section] 768.79 are not available in any case in which a
declaratory judgment accompanies a claim for damages.” Yacht Club on the
Intracoastal Condo. Ass’n, Inc. v. Lexington Ins. Co., 599 Fed. Appx. 875,
883 (11th Cir. 2015) (applying Florida law). It reasoned that “by citation to Nelson
and DiPompeo Construction, [the Diamond Aircraft court]
reiterated that a court should look behind the procedural vehicle used in a
complaint to discern what true relief is sought.” Id. Considering the
facts behind a suit for breach of contract and declaratory relief, the Eleventh
Circuit concluded that “the only dispute in the suit was one for damages” and
thus, held that the “district court did not err in awarding attorney’s fees
under [section] 768.79” despite the presence of a claim for nonmonetary relief.
Id. at 884.

In the instant case, the trial court applied the “true
relief” analysis outlined above when considering the enforceability of
International Paint’s offers. Specifically, the trial court found that MYD did
not actually pursue any nonmonetary relief during the course of the litigation
and instead only sought money damages. In this scenario, it correctly concluded
that International Paint’s offers of judgment were enforceable. Diamond
Aircraft, 107 So. 3d at 37376; Yacht Club, 599 Fed. Appx. at 883.

Affirmed. (MAY, and GERBER, JJ., concur.)

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