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May 19, 2017 by admin

Attorney’s fees — Proposal for settlement — Rejection — Where attorney’s fees were not sought in pleadings, proposal for settlement was not invalid for failing to state whether attorney’s fees were part of claim

42
Fla. L. Weekly D1110d
Top of Form

Attorney’s
fees — Proposal for settlement — Rejection — Where attorney’s fees were not
sought in pleadings, proposal for settlement was not invalid for failing to
state whether attorney’s fees were part of claim — Proposal for settlement not
invalid for failure to state amount offered to settle punitive damages claim
where punitive damages were not sought in complaint — Error to deny attorney’s
fees based on finding that proposal was invalid

MICHAEL AGUADO, Appellant, v. ALLEN
MILLER, Appellee. 1st District. Case No. 1D16-4589. Opinion filed May 16, 2017.
An appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser,
Judge. Counsel: Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola,
and Adrian R. Bridges of Michles & Booth, P.A., Pensacola, for Appellant.
Elizabeth A. Parsons and Megan Marie Hall of Wilson, Harrell, Farrington, Ford,
Wilson, Spain & Parsons, P.A., Pensacola, for Appellee.

(PER CURIAM.) Appellant, the
plaintiff below, seeks review of an order denying his motion for attorney’s
fees based on an unaccepted proposal for settlement. The trial court denied the
motion based on its determination that the proposal was invalid because it did
not strictly comply with section 768.79, Florida Statutes, and Florida Rule of
Civil Procedure 1.442 in two respects: (1) it did not state whether attorney’s
fees were part of the claim to be settled, and (2) it did not state the amount
offered to settle a claim for punitive damages. We reverse based on Kuhajda
v. Borden Dairy Company of Alabama, LLC
, 202 So. 3d 391 (Fla. 2016).1

In Kuhajda, the Court held
that “if attorney’s fees are not sought in the pleadings an offer of settlement
is not invalid for failing to state whether the proposal includes attorney’s
fees and whether attorney’s fees are part of the legal claim.” Id. at
393. This holding squarely rejects the first reason that the trial court found
Appellant’s proposal for settlement to be invalid. It likewise undermines the
second reason because, to paraphrase the district court decision approved by
the Court in Kuhajda, it would make no sense to require the offeror to
state in its proposal for settlement that the offer does not include punitive
damages when the plaintiff did not claim an entitlement to them and could not
recover them because of the failure to plead. See id. at 396
(quoting Bennett v. Am. Learning Sys. of Boca Delray, Inc., 857 So. 2d
986, 988-89 (Fla. 4th DCA 2003)).

Here, Appellant did not seek
punitive damages in his complaint. Accordingly, although there would have been
no harm in Appellant including a statement in his proposal for settlement
indicating that no portion of the amount offered was for punitive damages, the
absence of such a statement does not render the otherwise unambiguous proposal
invalid. See Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA
2002) (“We conclude that the ‘if any’ language of subsection (E)[2] requires a proposal for settlement
to include terms for settlement of a punitive damage claim only when the
pleadings contain a pending claim for punitive damages. In the absence of such
a claim, the rule does not require a party to include needless ‘not applicable’
language in the proposal.”).

Based on Kuhajda (and because
we find no merit in Appellee’s “tipsy coachman” arguments for affirmance), we
reverse the order denying Appellant’s motion for attorney’s fees and remand for
the trial court to determine the amount of the fee award.

REVERSED and REMANDED with
directions. (WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.)

__________________

1The trial court did not have the
benefit of Kuhajda when it ruled on Appellant’s fee motion, and its
ruling was compelled by then-controlling precedent from this court that was
quashed in Kuhajda.

2Fla. R. Civ. P. 1.442(c)(2)(E) (“A
proposal [for settlement] shall . . . state with particularity the amount
proposed to settle a claim for punitive damages, if any.”) (emphasis
added); see also § 768.79(2)(c), Fla. Stat. (“An offer [of settlement]
must . . . [s]tate with particularity the amount offered to settle a claim for
punitive damages, if any.”) (emphasis added).

* * *

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