Attorney’s
fees — Proposal for settlement — In denying award of attorney’s fees to
defendant pursuant to proposal for settlement, trial court erred in finding
that defendant’s amendment to add affirmative defenses during pendency of the
proposal mooted the proposal — Proposal was not rendered impermissibly
ambiguous by virtue of fact that proposal did not specify whether claims would
be resolved by full or partial release, dismissal, or any other means

MANUEL DIAZ FARMS, INC., Appellant, v. WILLIAM J. DELGADO,
Appellee. 3rd District. Case No. 3D15-86. L.T. Case No. 12-5914. May 11, 2016.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge.
Counsel: Diaz Reus & Targ and Juan Ramirez, Jr.; Emilia Diaz Fox, for
appellant. Marko & Magolnick and Joel S. Magolnick; Willenken Wilson Loh
& Delgado and William A. Delgado (Los Angeles, CA), for appellee.

(Before ROTHENBERG, SALTER and SCALES, JJ.)

(SALTER, J.) Manuel Diaz Farms, Inc. (“MDF”), appeals an
order denying its motion for attorney’s fees and costs based on a proposal for
settlement served pursuant to Florida Rule of Civil Procedure 1.442. We reverse
and remand for the entry of an order determining the reasonable amount of MDF’s
attorney’s fees and costs incurred in the circuit court lawsuit.

Facts and Procedural Background

The appellee, William J. Delgado, was the plaintiff below.
Mr. Delgado filed a lawsuit against MDF in 2012, alleging breaches of a
one-page “sales representative agreement” signed by the parties in 2011 and
cancellable by either party upon ninety days’ written notification. Mr. Delgado
alleged that certain commissions remained due after cancellation of the
agreement, while MDF asserted that Mr. Delgado had been paid in full. In its
responsive pleading, MDF demanded trial by jury.

In mid-2013, MDF served Mr. Delgado with a written proposal
for settlement pursuant to Rule 1.442 and section 768.79, Florida Statutes
(2012). MDF proposed to resolve “[a]ll issues and claims for damages asserted
against [MDF] as conveyed in [Mr. Delgado’s] Complaint filed with respect to
the above styled matter on February 15, 2012,” for a payment of $1,000.00. As
enumerated in Rule 1.442(c)(2), the MDF proposal also specified that: there
were no nonmonetary terms; no amount was proposed to settle any claim for
punitive damages; no offer for Mr. Delgado’s attorney’s fees was included;1 and the proposal “shall be deemed by
[MDF] to be rejected unless accepted by delivery of a written notice of
acceptance within thirty (30) days after service of the Proposal.” No form of
release was mentioned in, required by, or attached to, the MDF proposal.

Mr. Delgado did not accept the MDF proposal for settlement,
which was deemed rejected pursuant to the terms of the proposal and Rule
1.442(f). In early 2014, the case was tried before a jury. Mr. Delgado obtained
a verdict in the amount of $1.00. MDF’s motion for an award of attorney’s fees
and costs under Rule 1.442 was nonetheless denied by the trial court “based on
the fact that the subsequent amendment of the pleadings, a reopening of the
pleadings after service of the proposal for settlement made a different case,
mooted out the proposal.” This appeal followed.

Analysis

Our review of the proposal for settlement and its compliance
with Rule 1.442 and section 768.79 is de novo. Oasis v. Espinoza, 954
So. 2d 632, 634 (Fla. 3d DCA 2007).

Mr. Delgado’s arguments and authority in support of the
trial court’s ruling are not persuasive. Mr. Delgado did not show, and the
trial court did not find, that the proposal for settlement was not made in good
faith. It is undisputed that the proposal was timely when filed and served, and
that it was rejected by Mr. Delgado. Mr. Delgado’s argument that “the Proposal
failed to properly address non-monetary relief, resulting in an impermissibly
ambiguous proposal that was invalid as a matter of law,” essentially complains
that the proposal does not specify whether the claims would be resolved by full
or partial release, dismissal, or any other means. This very argument was
rejected, however, in Jacksonville Golfair, Inc. v. Grover, 988 So. 2d
1225, 1228 (Fla. 1st DCA 2008):

Appellees
argue that the settlement proposal did not include provisions describing how
the specific claims would be dismissed, thus it required speculation on how the
settlement would be procedurally consummated. We disagree. In Palm Beach
Polo Holdings, Inc. v. Madsen, Sapp, Mena, Rodriguez & Co., 957 So. 2d
36 (Fla. 4th DCA 2007), the Fourth District found no ambiguity in a settlement
proposal that sought to settle all pending claims in the case. The proposal in
that case stated, “This offer, if accepted, will settle all pending claims in
this action.” Id. at 37. The offeree argued that this proposal was
defective since it did not state whether, if accepted, the claims would be
dismissed or whether the offeror would release the offeree. Id. The
court rejected this argument, since section 768.79, Florida Statutes, and
Florida Rule of Civil Procedure 1.442 do not require that a proposal contain
this type of language. Id. at 38. The proposal contained clear language
indicating that, if accepted, the settlement would have ended the litigation
and disposed of all pending claims. Id. No further particularity was
required as to how the claims would be settled.

The analysis in Jacksonville Golfair and in Palm
Beach Polo Holdings is applicable to the proposal for settlement filed in
the present case. The inclusion of terms regarding a release — the very
mention (and form) of which has engendered sufficient quibbling to jeopardize
the efficacy of the fee-shifting rule and statute — is not required.

Finally, we address Mr. Delgado’s argument, adopted by the
trial court, that MDF’s amendment to add affirmative defenses during the
pendency of the proposal “mooted out the proposal for settlement.” As support
for such a proposition, Mr. Delgado cites a case decided long ago and far away,
Thornall v. Crawford, 70 N.Y.S. 61 (N.Y. Sup. Ct. 1901). The opinion in
that case addressed offers of judgment, not proposals for settlement, and
turned on the fact that the plaintiff had “entirely abandoned the cause of
action” that was the subject of an offer of judgment, adding a new cause of
action and greatly increasing the sum in controversy. Id. at 62. The
court held that these material modifications to the plaintiff’s claim relieved
the defendant of any obligation to accept the initial offer of judgment. The
court concluded that the initial offer of judgment was rendered “nugatory” by
the material modifications to the plaintiff’s claim. Id. at 64.

In contrast, in the present case, MDF’s proposal for settlement
was for a fixed monetary amount to settle “all issues and claims for damages”
in Mr. Delgado’s complaint. Mr. Delgado did not amend the complaint or his
claim for damages following the proposal. We find no basis in precedent, Rule
1.442, or section 768.79, to support Mr. Delgado’s argument that his
adversary’s amendment to its affirmative defenses somehow “moots” or otherwise
vitiates a clear, timely, good faith, and straightforward proposal for
settlement. To the contrary:

The
legislature created a property right to an award of attorney’s fees where a
party complies with section 768.79, Florida Statutes. Although it is true that
the statute is in derogation of common law and must be strictly construed, Willis
Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003),
this rule of construction should not eviscerate the legislature’s policy
choice.

Jacksonville Golfair, 988 So. 2d at 1227.

Reversed and remanded to the trial court to fix the amount
of reasonable attorney’s fees compensable to MDF.

__________________

1MDF’s proposal noted that Mr.
Delgado’s request for attorney’s fees in its complaint had been stricken (on
MDF’s motion) in an earlier court order.

* *
*