39 Fla. L. Weekly D1862a
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
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.
from an order denying its motion for attorney’s fees pursuant to a proposal for
settlement. For the reasons that follow, we affirm.
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.”
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.
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.
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).
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. . . .
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
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).
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.
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.
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
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.
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.
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).
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.
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).
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.”
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).
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).
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).
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.
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)).
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.
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