Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

September 12, 2014 by admin

Offer of Judgment / Proposal for Settlement served 60 days after filing of amended complaint was premature / not enforceable for purposes of award of attorneys’ fees

39 Fla. L. Weekly D1862a


Attorney’s fees — Proposal for settlement — Trial court properly denied
defendant’s motion for attorney’s fees pursuant to proposal for settlement where
proposal was filed prematurely less than 90 days after action had been commenced
against defendant
DESIGN HOME REMODELING CORP., Appellant, vs. RENE SANTANA AND MARITZA TORRES,
Appellees. 3rd District. Case No. 3D13-2852. L.T. Case No. 09-38357. Opinion
filed September 3, 2014. An Appeal from the Circuit Court for Miami-Dade County,
Jerald Bagley, Judge. Counsel: Gilbert & Caddy, Bryce Gilbert and Randall L.
Gilbert (Hollywood), for appellant. Ross & Girten and Lauri Waldman Ross;
Friedman & Friedman and John S. Seligman, for appellees.
(Before LAGOA, SALTER and EMAS, JJ.)
(EMAS, Judge.) Design Home Remodeling Corporation (“Design Home”) appeals
from an order denying its motion for attorney’s fees pursuant to a proposal for
settlement. For the reasons that follow, we affirm.

FACTS AND BACKGROUND
In December 2007, Rene Santana (“Santana”) slipped and fell on premises owned
by Flanco Condominium Association, Inc. (“Flanco”). In May 2009, Santana and
Maritza Torres (“Torres”), Santana’s wife, filed a premises liability action
against Flanco, alleging negligent maintenance. In its answer to the complaint,
Flanco asserted that non-party Design Home was at fault for any negligent
maintenance. On March 26, 2010, Santana and Torres filed an amended complaint,
adding Design Home as a defendant and alleging Design Home was negligent because
it “failed to keep [the] premises in a reasonably safe condition on the floor
and/or failed to warn that the floor was wet and slippery.”
On May 25, 2010, sixty days from the date on which Santana and Torres filed
the amended complaint adding Design Home as a defendant, Design Home served
Santana and Torres with individual proposals for settlement. By their express
terms, the proposals were made pursuant to section 768.79, Florida Statutes
(2010) and Florida Rule of Civil Procedure 1.442. Neither Santana nor Torres
accepted the proposals for settlement or served any response.
Three years later, the trial court entered an agreed summary final judgment
in favor of Design Home on all claims. Design Home timely filed its motion for
attorney’s fees, asserting as its basis the prior proposals for settlement. The
trial court denied the motion, concluding that they had been filed prematurely
under rule 1.442(b). Design Home’s motion for rehearing was also denied, and
this appeal followed.

ANALYSIS
We review de novo the question of whether a trial court properly
applied the law in denying a motion for attorney’s fees. Campbell v.
Goldman
, 959 So. 2d 223, 225 (Fla. 2007). See also, S. Baptist
Hosp. of Fla., Inc. v. Welker
, 908 So. 2d 317 (Fla. 2005).
Section 768.79, Florida Statutes (2007), entitled “Offer of judgment and
demand for judgment” provides, in pertinent part:

In any civil action for damages filed in the courts of this state,
if a defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable costs and
attorney’s fees incurred by her or him. . . .

Section 768.79 does not provide a timeframe within which an offer of judgment
or demand for judgment can be made. However, Florida Rule of Civil Procedure
1.442, entitled “Proposals for Settlement,” implements the statute and provides
additional procedural components, including the following pertinent timeframes:

A proposal to a defendant shall be served no earlier than 90 days
after service of process on that defendant; a proposal to a plaintiff shall
be served no earlier than 90 days after the action has been
commenced
.

Rule 1.442(b)(emphasis added).
Section 768.79 and rule 1.442 are in derogation of the common law rule that
each party bear its own attorney’s fees1;
therefore, the provisions of the statute and the rule must be strictly
construed. Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276,
278 (Fla. 2003).
In Campbell, the trial court invalidated a proposal for settlement
because it failed to include the requisite reference to the statute upon which
the proposal was based.2 The Fourth
District reversed, holding that the proposal’s failure to expressly cite to the
statute constituted “an insignificant technical violation of the rule.”
Campbell, 959 So. 2d at 225. In doing so, the Fourth District certified
direct conflict with contrary decisions of the First and Second
Districts.3 The Supreme Court accepted
jurisdiction, quashed the Fourth District’s decision, approved the decisions in
McMullen Oil and Pippin, and reaffirmed the requirement that the
provisions of rule 1.442 and section 768.79 be strictly construed:

[S]trict construction is applicable to both the substantive and
procedural portions of the rule and statute. When read together the rule and
statute provide parties with an unambiguous method for obtaining attorney fees.
Section 768.79 provides a sanction against a party who unreasonably rejects a
settlement offer. See Willis Shaw, 849 So.2d at 278. The plain language
of the statute provides that an offer must state it is being made
pursuant to this section. This is a mandatory requirement for this penal,
fee-shifting provision. Because the overall subject is in derogation of the
common law, all portions must be strictly construed.

Id. at 227.
Notwithstanding the Supreme Court’s decision in Campbell, Design Home
relies on two cases from our Court — both of which predate the Campbell
decision — to support its contention that prematurity is a mere “technical
violation” and not fatal to the validity of a proposal for settlement.
Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001) is
indistinguishable on its relevant facts from the instant case, and involved a
premature offer of judgment made by a third-party defendant upon a third-party
plaintiff. Our Court determined that, under the circumstances, this prematurity
did not invalidate the offer:

[I]t seems clear cut that — while the ninety day provision may
serve a useful purpose in the case of an offer to a defendant, who
presumably is in no position to respond so soon after he first gets notice of
the case — it seems to have no such reason for being, or any other, when, as
here, an offer by the defendant is involved. . . . . Particularly in
these circumstances in which the present action against Kuvin was brought only
after six years of accumulation of information about the case, we find that, as
we stated in Flight Express, Inc. v. Robinson, 736 So. 2d 796, 797 n. 1
(Fla. 3d DCA 1999) any “failure to follow [rule 1.442] must be considered merely
a harmless technical violation which did not affect the rights of the
parties.”

Kuvin, 797 So. 2d at 613.

Shoppes of Liberty City, LLC v. Sotolongo, 932 So. 2d 468 (Fla. 3d DCA
2006) is the second pre-Campbell case relied upon by Design Home. In
Shoppes, this Court determined that the proposal for settlement was not
premature. We held alternatively (and relying upon Kuvin), that even if
the proposal was premature, the “mere prematurity of a defendant’s proposal for
settlement does not disentitle it to recovery under the pertinent rule.”
Id. at 469.
Regardless of the logic underlying the decisions in Kuvin and
Shoppes, the Supreme Court’s subsequent decision in Campbell
plainly and unambiguously rejects the notion that a failure to comply with the
requirements of rule 1.442 and section 768.79 can be considered a “mere
technical violation” thus preserving the validity of a proposal for settlement.
To this extent, the Supreme Court’s pronouncement in Campbell has sub
silentio
overruled this Court’s holdings in both Kuvin and
Shoppes. See, Hoffman v. Jones, 280 So. 2d 431 (Fla.
1973)(holding that district courts of appeal have no authority to overrule a
decision of the Supreme Court of Florida; district courts are duty-bound to
follow the decision of the Florida Supreme Court, even if it conflicts with a
prior opinion of the district court).4
Design Home’s naked assertion that Kuvin and Shoppes somehow
survived the holding of Campbell is simply untenable. The broad and
unequivocal language of Campbell has covered the waterfront and, Design’s
tacit argument notwithstanding, it is not necessary for the Supreme Court, in
issuing an opinion that resolves a decisional conflict between the district
courts, to catalogue every other intermediate appellate court decision that may
be overruled in its wake.
Design Home was not included as a party in the lawsuit until the amended
complaint, naming Design Home as a defendant, was filed on March 26, 2010.
Design Home served its proposal on May 25, 2010, sixty days after the amended
complaint was filed against Design Home, contrary to the rule’s requirement that
“a proposal to a plaintiff shall be served no earlier than 90 days after the
action has been commenced.”5 Thus, Design
Home’s premature proposal for settlement violated the express ninety-day
requirement of rule 1.442(b).

CONCLUSION
We recognize that, under the facts of the instant case, the result may appear
harsh. But for the ninety-day timeframe established by the rule, a plaintiff
might reasonably expect a defendant to make a proposal for settlement
straightaway in response to a lawsuit, and it is difficult to conceive of a
reason why a plaintiff would be unprepared to respond to such a proposal within
the requisite thirty-day timeframe.6
However, the express language of the rule,7 together with the principle of strict construction
and the holding in Campbell, lead inexorably to an affirmance of the
trial court’s order.
Affirmed.
__________________
1The American Rule states “that each
party, including the successful one, in litigation must ordinarily bear the
burden of his own attorneys’ fees.” General Motors Corp. v. Sanchez, 16
So. 3d 883, 884 (Fla. 3d DCA 2009).
2Section 768.79(2)(a) requires that an
offer of judgment or demand for judgment “[b]e in writing and state that it is
being made pursuant to this section.” Rule 1.442(c)(1) provides: “A proposal
shall be in writing and shall identify the applicable Florida law under which it
is being made.”
3McMullen Oil Co. v. ISS Int’l Svc.
Sys.
, 698 So. 2d 372 (Fla. 2d DCA 1997) (superceded by rule on other
grounds) and Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993).
4In fact, this Court has already
acknowledged and followed the holding of Campbell without further
reference to our prior decisions in Kuvin and Shoppes. See
e.g.,
Milton v. Reyes, 22 So. 3d 624 (Fla. 3d DCA 2009).
5Although not raised by either party, we
would agree with our sister court that the phrase “after the action has been
commenced” means, in this context, after the action was commenced against
Design Home
— specifically, when Appellees filed their amended complaint
adding Design Home as a named defendant. See, Regions Bank v.
Rhodes
, 126 So. 3d 1259 (Fla. 4th DCA 2013).
6Given the existence of the rule and its
mandatory timeframes, however, one cannot ignore the possibility that in the
instant case Appellees recognized the proposals were served prematurely and were
invalid under Campbell, therefore requiring no response at all.
7One cannot help but lament the
often-tortuous history of offers of judgments/proposals for settlement and the
valiant attempts to craft a rule that effectuates the statute’s intended purpose
without procedural shortcomings that sometimes serve to frustrate good-faith
settlement efforts. See e.g., Campbell, 959 So. 2d at 227-28
(Pariente, J. specially concurring); Lamb v. Matetzschk, 906 So. 2d 1037,
1042-44 (Fla. 2005) (Pariente, J. specially concurring); Sec. Prof’ls, Inc.
v. Segall
, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997) (observing “[w]e regret
that this case is just one more example of the offer of judgment statute causing
a proliferation of litigation, rather than fostering its primary goal to
‘terminate all claims, end disputes, and obviate the need for further
intervention of the judicial process.’ ”) (quoting Unicare Health Facilities,
Inc. v. Mort
, 553 So. 2d 159, 161 (Fla. 1989)).
While we do not suggest the existence of an unassailable solution, we would
encourage the Florida Bar’s Civil Procedure Rules Committee to consider whether
the rule should be amended to require an offeree to serve a limited response to
a proposal (apart from the existing response provision in the rule), raising any
procedural defects to the proposal, thereby providing the offeror with an
opportunity to serve a corrected proposal, in an effort to effectuate the
salutary purpose underlying a proposal for settlement. Should the offeree fail
to serve such a response, the rule could provide that this failure waives any
right to subsequently challenge the proposal based upon these procedural
defects. Such an amendment would prevent situations in which an offeror might
reasonably believe he has made a fair, valid and binding offer, only to find out
(at the eventual conclusion of costly and lengthy litigation) that the offer was
procedurally defective and therefore invalid ab initio. If the aim is to
promote early and reasonable settlements, it seems worthwhile to consider
whether the rule should be fashioned to give the offeror an opportunity to cure
any procedural defects so that the offeree has a genuine opportunity to weigh
the substantive merits of a proposal for settlement.

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982