Campbell v. Goldman

• Court: Florida Supreme Court
• Writing for the Court: Quince
• Citation: Campbell v. Goldman, 959 So.2d 223 (Fla. 2007)
• Decision Date: 14 June 2007
• Docket Number: No. SC06-611.,SC06-611.
• Parties: Rose G. CAMPBELL, Petitioner, v. Clivens GOLDMAN, Respondent.

959 So.2d 223

Rose G. CAMPBELL, Petitioner, v. Clivens GOLDMAN, Respondent.

No. SC06-611.

Supreme Court of Florida.

June 14, 2007.

Richard A. Sherman, Sr., P.A., Fort Lauderdale, FL, Samuel Tyler Hill of Hill and Lemongello, P.A., Fort Lauderdale, FL, and Charles W. Hall and Mark D. Tinker of Fowler, White, Boggs, and Banker, P.A., St. Petersburg, FL, for Petitioner.

Arnold R. Ginsberg of Ginsberg and Schwartz, Miami, FL, and Nicole Sophia Freedlander of Nelson and Freedlander, Miami, FL, for Respondent.

QUINCE, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006). The district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in McMullen Oil Co. v. ISS International Service System, Inc., 698 So.2d 372 (Fla. 2d DCA 1997), and the First District Court of Appeal in Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we quash the decision of the Fourth District and approve McMullen Oil Co. and Pippin.

FACTS AND PROCEDURAL HISTORY

In a civil action between Clivens Goldman as plaintiff and Rose G. Campbell as defendant, a notice of filing of plaintiff's proposal for settlement for $10,000 was served on the defendant on August 13, 1999, and again on November 17, 2003. The proposal was never accepted, nor was it filed with the trial court. More notably, the proposal made reference to Florida Rule of Civil Procedure 1.442 but did not cite the applicable statute, section 768.79, Florida Statutes (2003). On May 27, 2004, the jury returned a verdict in favor of plaintiff in the amount of $18,900, and the trial court entered a final judgment for that amount. This judgment met the statutory requirement that the recovery must be at least twenty-five percent greater than the settlement offer in order for the plaintiff to be entitled to attorney's fees and costs. See Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006).

Goldman filed a motion for attorney fees and costs after recovering the net verdict and judgment, and the trial court denied the motion. On appeal, the Fourth District noted, "An offer of settlement must comply with both rule 1.442 and section 768.79." Goldman, 920 So.2d at 1265.¹ The district court indicated, citing to Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003), that both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees. Finally, the district court said the statute and the rule must be strictly construed pursuant to Sarkis v. Allstate Insurance Co., 863 So.2d 210, 218 (Fla.2003); Major League Baseball v. Morsani, 790 So.2d 1071, 1078-79 (Fla.2001), and TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995). The district court noted, "Following this principle of strict construction, we have found settlement proposals invalid when they did not comply with the statutory and rule requirements." Goldman, 920 So.2d at 1265 (citing Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 265 (Fla. 4th DCA 2000)). The district court also noted that other district courts have "similarly struck proposals." Goldman, 920 So.2d at 1266 (citing Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004); McMullen Oil Co. v. ISS Int'l Serv. Sys., Inc., 698 So.2d 372, 373 (Fla. 2d DCA 1997); Pippin v. Latosynski, 622 So.2d 566, 569 (Fla. 1st DCA 1993)).

Despite its acknowledgment of the requirements of the applicable rule and statute, the Fourth District adopted the Fifth District's view of these requirements as espoused in Spruce Creek Development Co. of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). In Spruce Creek, the Fifth District found the failure of the settlement proposal to cite to the rule "an insignificant technical violation of the rule." Id. at 1116. The Fourth District, however, certified conflict with Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993), and McMullen Oil Co. v. ISS International Service System, Inc., 698 So.2d 372 (Fla. 2d DCA 1997), both of which held under similar circumstances that the failure to cite to the applicable statute was error.

DISCUSSION

Campbell maintains this Court should follow Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), and Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), which reaffirmed the "bright line rule" regarding strict construction of the offer of judgment statute and rule. Thus, Campbell contends this Court should reverse the decision of the district court. Conversely, Goldman argues strict construction should be applied whenever substantive, not procedural matters are implicated and thus the decision should be approved. The question before this Court is one of law subject to the de novo standard of review. See S. Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005). The issue here involves the settlement proposal and whether it was valid even though it did not reference section 768.79.

The settlement proposal in this case referenced Florida Rule of Civil Procedure 1.442, entitled "Proposals for Settlement." Specifically, rule 1.442(a) reads in pertinent part as follows:

This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.

Rule 1.442(c), entitled "Form and Content of Proposal for Settlement," provides in pertinent part: "(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made." (Emphasis added.) In addition to rule 1.442, offers to settle are addressed by statute in section 768.79, Florida Statutes (2006). Section 768.79 is entitled "Offer of judgment and demand for judgment" and reads in relevant part as follows:

(1) In any civil action for damages filed in the courts of this state, . . . [i]f a plaintiff filed a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. . . .

(2) . . . An offer must:

(a) Be in writing and state that it is being made pursuant to this section.

(Emphasis added.) Thus, both rule 1.442 and section 768.79 require an offer to settle to be in writing and to include a citation to the statute, i.e., the applicable Florida law.

As the Fourth District noted, both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees, and thus the statute and rule must be strictly construed. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). Nonetheless, the Fourth District adopted the reasoning in Spruce Creek and found the omission of reference to the statute to be a mere technical violation. The district court erred in so holding.

Recently in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), this Court addressed rule 1.442 and section 768.79 in the context of whether an offer of settlement to multiple parties must apportion the amounts applicable to each. In answering the question presented, we examined section 768.79 in its entirety and noted that this section was implemented by rule 1.442. We further noted that the rule was amended in 1996 to require greater detail in settlement proposals. See In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 107 (Fla.1996) (effective Jan. 1, 1997). We specifically found the language of the statute and rule must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own fees. Willis Shaw, 849 So.2d at 278. We held: "[U]nder the plain language of rule 1.442(c)(3), an offer from multiple plaintiffs must apportion the offer among the plaintiffs." Willis Shaw, 849 So.2d at 279; see also Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005) (reaffirming a strict construction of rule 1.442).

We find that the holding in Willis Shaw and Lamb regarding strict construction of the language in the offer of judgment statute and rule at issue in those cases is equally as applicable to the language from rule 1.442 and section 768.79 concerning the requirements of citing authority. Contrary to Goldman's assertions, strict 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. The district court erred in failing to strictly construe the plain language of the rule and statute.

CONCLUSION

Based on the plain language of section 768.79, an offer of settlement must state the statute on which it is based. Thus, we quash the decision of the Fourth District and approve McMullen Oil and Pippin to the extent that they are consistent with our decision.

It is so ordered.

LEWIS, C.J., and WELLS and CANTERO, JJ., concur.

PARIENTE, J., specially concurs with an opinion, in which ANSTEAD, J., concurs.

BELL, J., concurs in result only with an opinion.

1. The district court noted that rule 1.442(c)(1) states: "A proposal ...