Fox v. McCaw Cellular Communications

• Decision Date: 09 December 1998
• Docket Number: No. 97-2052.,97-2052.
• Citation: 745 So.2d 330
• Parties: Ira FOX, Appellant, v. McCAW CELLULAR COMMUNICATIONS OF FLORIDA, Inc., d/b/a Cellular One; Advanced Cellular Systems, Inc.; Vern's Enterprises, Inc., d/b/a Vern Electronics; Almac Communications, Inc.; Radiotronics, Inc.; Metro Cellular Inc.; Central Cellular, Services, Inc.; Florida Cellular, Inc.; and Ronald Hickenbotham, Appellees.
• Court: Florida District Court of Appeals

745 So.2d 330

Ira FOX, Appellant, v. McCAW CELLULAR COMMUNICATIONS OF FLORIDA, Inc., d/b/a Cellular One; Advanced Cellular Systems, Inc.; Vern's Enterprises, Inc., d/b/a Vern Electronics; Almac Communications, Inc.; Radiotronics, Inc.; Metro Cellular Inc.; Central Cellular, Services, Inc.; Florida Cellular, Inc.; and Ronald Hickenbotham, Appellees.

No. 97-2052.

District Court of Appeal of Florida, Fourth District.

December 9, 1998.

Donald S. Hershman of Donald S. Hershman, P.A., Boca Raton, and Rick A. Saturn of Law Offices of Rick A. Saturn, Defray Beach, for Appellant.

David P. Ackerman and Julie E. Fox of Ackerman, Link & Sartory, P.A., West Palm Beach, for Appellee McCaw Cellular.

PER CURIAM.

This case involves an offer of judgment in the amount of $100. The trial judge found it in good faith and awarded fees. We affirm the award because the record fully supports the determination but write to address "nominal"¹ offers of settlement under section 768.79.²

Plaintiff was employed by Florida Cellular, an AT & T Wireless Services dealer. He alleges that when AT & T terminated the dealership Florida Cellular sold its business to another AT & T dealer and that he was fired within one week. He was hired by a different AT & T dealer but within three days he was also terminated there. He filed suit against several defendants alleging that they had combined to prevent him from getting a job with any AT & T dealer. His complaint alleged causes of action for group boycott under Florida antitrust law, defamation, and interference with a contract.

Defendants first responded with a motion to dismiss the complaint on the basis that it failed to state a cause of action.³ Along with their initial response, they also served an offer of judgment under section 768.79, Florida Statutes (1993), proposing to settle all claims for $100. Plaintiff did not respond to the offer. Instead he filed an amended complaint, and defendants again moved to dismiss on identical grounds. The trial court also granted this motion. Second and third amended complaints were filed, and the antitrust claim was ultimately dismissed with prejudice.

After a fourth amended complaint was filed, defendants answered and moved for summary judgment as to the two remaining counts of defamation and tortious interference, arguing the absence of any evidence of malice to overcome their qualified privilege. The trial court granted the motion and entered final judgment. Plaintiff appealed the judgment, but the appeal was dismissed when he failed to file a brief.

Following the dismissal of the appeal, the trial court concluded that defendants were entitled to attorney's fees under section 768.79 on the basis of their unaccepted offer of judgment. The trial court noted that the only argument against fees was that the offer was nominal and therefore not in good faith. The court concluded that plaintiff had failed to produce any evidence of bad faith and found instead that the offer had been made in good faith. The court also found the requested fees reasonable. As we have already indicated, the record supports these findings by the trial judge.

Plaintiff argues that the offer of judgment was made with defendants' initial response to the lawsuit and before any discovery had been done. He insists that the defendants could not then have had the evidence to defeat his claims. Indeed, he points out that counsel's time sheets in support of the fees show little time spent on the case at the time of the offer, which he thus characterizes as simply a "kneejerk" reaction to the suit without any reasonable or realistic assessment of the liability and damages issues raised by his claims.

He argues that his state law antitrust claim was "by its very nature ... a very complicated cause of action" and was, he contends, to a great extent controlled by federal antitrust decisions, which he suggests were "in a state of flux and unsettled." At the time the offer was made, he argues, the offerors could not possibly have "made an accurate [e.s.] assessment of their clients' liability and based their offer accordingly in `good faith.'" He argues that our decision in Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996), stands for the proposition that all nominal offers are prima facie in bad faith and thus we should reverse.

We disagree. Eagleman merely holds that nominal offers are suspect where they are not based on any assessment of liability and damages. When a nominal offer is not based on an evaluation of potential liability and damages, the offer raises a question as to the intentions of the offeror. In that circumstance, Eagleman holds that an issue of good faith arises for resolution by the trial court.

Our conclusion is buttressed by cases from other courts holding that nominal offers of judgment are not alone determinative of bad faith. See Weesner v. United Services Auto. Ass'n, 711 So.2d 1192 (Fla. 5th DCA 1998)

(fact that offer is nominal not necessarily determinative of issue of good faith); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2nd DCA 1997) (offer of $1 treated as in good faith); and Peoples Gas System Inc. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3rd DCA 1997) (offer of $2,500 in case later settled for $3.5 million not determinative of bad faith). The common thread running through the decisions is that the offerors in all of them had a reasonable basis at the time of the offer to conclude that their exposure was nominal. The history of the protracted litigation in Eagleman suggested that the offeror had purposes other than to effect a settlement between the parties and suggested that the offer was in bad faith. The claim in suit, we note, ultimately brought a jury to deadlock. Therefore, even viewing such offers with "considerable skepticism," Eagleman, 673 So.2d at 948, proof of bad faith requires a showing beyond the mere amount of the offer.

We stress that the question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case. Each case requires its own analysis, and must be considered on its own facts. Whether an offer was made in bad faith involves a matter of discretion reposed in the trial judge to be determined from the facts and circumstances surrounding the offer. That determination is not controlled by a legal imperative requiring a finding of bad faith merely because the offer was nominal. Some nominal offers will have been made in good faith; some not so. The trial judge will have to consider all the surrounding circumstances when the offer was made.

If the cases reaching us are any guide, offers of settlement under section 768.79 are pervasive, and there is widespread disagreement among trial judges and lawyers as to the meaning of the "not in good faith" provision of the statute. One widely held belief is that a mere purpose to shift fees by making a nominal offer is indicative of bad faith under the statute. Because this issue recurs so frequently in this court, we have decided that it is necessary to certify the following question of great public importance to the supreme court:

Is a mere purpose to shift fees by making a nominal offer of settlement, regardless of the objective indications at the time of making the offer or after the final disposition of the case, alone indicative of bad faith under section 768.79?

In this instance, we affirm the trial judge's finding that this nominal offer was made in good faith because there was no showing by the offeree that it was in bad faith apart from the offer itself.

AFFIRMED.

GUNTHER and KLEIN, JJ., concur.

FARMER, J., concurs specially with opinion.

KLEIN, J., concurs specially with opinion.

FARMER, Judge, concurring specially.

I concur in the result with the following additional understanding.

The gist of the Eagleman holding is that, where an offer is shown not to rest on any reasonable assessment of liability and damages and the offer has no reasonable relationship to damages, the court should begin its assessment of the bad faith claim by viewing the offer with some skepticism. I note that this is not a broad, categorical holding to the effect that all such offers are presumptively in bad faith. Rather, Eagleman merely presents an analytical construct for the trial judge. It becomes an appropriate stage in the analysis if, but only if, the conditional predicate—an offer has been shown not to rest on a reasonable assessment of liability and damages and further has no reasonable relationship to damages—for the construct has been established. Eagleman thus does not hold that all nominal offers are in bad faith, or even merely that all nominal offers are prima facie in bad faith. It simply holds that where a nominal offer is not preceded by the assessment of the claims the trial court should then consider it skeptically.

Having said that, it would seem to me a rare case that a party sued for money damages will not have made any assessment of liability and damages after receiving suit papers and before making an offer to settle the case. Moreover, a reasonable assessment of an offer requires little more than that the offeror decide—based on whatever information is then available— whether the claim actually presents some exposure in liability and damages to the offeror. As we said in Schmidt the offeror need have neither the kind nor amount of evidence necessary to defeat the claim at trial. Thus an assessment might be reasonable if, as here, the offeror does little more than consider the kind of claim presented and, with his own personal knowledge of the facts, estimate the likelihood of the claimant prevailing.⁴ If the offeror decides that the odds of the offeree prevailing are not good in his opinion, a nominal offer would presumptively be in good faith.

In assessing whether there is potential liability in a trial, an offeror might consider a host of factors, some of which may...