Goldman v. Campbell

• Decision Date: 01 March 2006
• Docket Number: No. 4D04-4920.,4D04-4920.
• Citation: 920 So.2d 1264
• Parties: Clivens GOLDMAN, Appellant, v. Rose G. CAMPBELL, Appellee.
• Court: Florida District Court of Appeals

920 So.2d 1264

Clivens GOLDMAN, Appellant, v. Rose G. CAMPBELL, Appellee.

No. 4D04-4920.

District Court of Appeal of Florida, Fourth District.

March 1, 2006.

Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Nicole S. Freedlander of Nelson & Freedlander, Miami, for appellant.

Richard A. Sherman of the Law Offices of Richard A. Sherman, Fort Lauderdale, and Samuel Tyler Hill of Hill & Lemongello, P.A., Fort Lauderdale, for appellee.

TAYLOR, J.

Clivens Goldman, the plaintiff below, timely appeals the denial of his motion for attorney's fees and costs. His motion for fees and costs was filed pursuant to section 768.79, Florida Statutes, after he recovered a net verdict/judgment in an amount twenty-five percent greater than his Proposal for Settlement. The trial court denied the plaintiff's motion because the proposal did not cite the statutory provision upon which the proposal was made. We reverse with directions to grant the plaintiff's motion for attorney's fees.

On August 13, 1999 and again on November 17, 2003, plaintiff served the defendant, Rose G. Campbell, with a notice of filing of plaintiff's proposal for settlement for $10,000. The proposal was never accepted, nor was it filed with the court. Although the proposal referenced Florida Rule of Civil Procedure 1.442, it did not cite the applicable statute, section 768.79, Florida Statutes. Subsequently, on May 27, 2004, the plaintiff was awarded a jury verdict in the amount of $18,900, which was twenty-five percent more than was offered in the settlement proposal. A final judgment for the same amount was rendered.

An offer of settlement must comply with both rule 1.442 and section 768.79. Rule 1.442(c)(1) (1999) states: "A proposal [for settlement] shall be in writing and shall identify the applicable Florida law under which it is being made." (Emphasis added). Section 768.79(6)(b) (1999) reads: "If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served." Subsection (2) lists the requirements of a valid settlement offer:

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

(b) Name the party making it and the party to whom it is being made.

(c) State with particularity the amount offered to settle a claim for punitive damages, if any.

(d) State its total amount.

(Emphasis added).

The Florida Supreme Court has recognized 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. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). It has thus held that the statute and rule must be strictly construed. See Major League Baseball v. Morsani, 790 So.2d 1071, 1078-79 (Fla.2001) ("[A] statute enacted in derogation of the common law must be strictly construed.... The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard."); TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995) (Wells, J., concurring in part and dissenting in part) (stating that statutes that award attorney's fees, such as 768.79, must be strictly construed). Strict construction is required of both the statute and the rule "[b]ecause attorney fees awarded under the offer of judgment statute are sanctions against the party whom the sanction is levied." Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 (Fla.2003).

Following this principle of strict construction, we have found settlement proposals invalid when they did not comply with the statutory and rule requirements. See Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 265 (Fla. 4th DCA 2000) (holding settlement proposal served prematurely under Florida Rule of Civil Procedure 1.442 to be invalid and finding the premature service to not be an "insignificant technical violation" as in Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999)); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (affirming order denying offer of judgment because it was untimely); see also Hall v. Lexington Ins. Co., 895 So.2d 1161, 1166 (Fla. 4th DCA 2005) (pursuant to Florida Rule of Civil Procedure 1.442(c)(3), "a proposal to two or more plaintiffs who each have a claim for their own separate damages is normally unenforceable because it requires them to aggregate their damages or settle their separate claims in some collective fashion").

Several other district courts of appeal have similarly struck proposals. See Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004) (holding defendants not entitled to attorney's fees because settlement offer did not state non-monetary terms with particularity as required by Florida Rules of Civil Procedure 1.442(c)(2)(C) and (D)); McMullen Oil Co., Inc. v. ISS Int'l Serv. Sys., Inc., 698 So.2d 372, 373 (Fla. 2d DCA 1997) (holding that the offer of judgment was insufficient to satisfy statutory requirements where it failed to expressly state that it was made pursuant to the statute and merely referred to "all applicable Florida statutes and the Florida Rules of Civil Procedure"); Murphy v. Tucker, 689 So.2d 1164, 1165 (Fla. 2d DCA 1997) (holding that section 768.79 must be strictly construed); Pippin v. Latosynski, 622 So.2d 566, 569 (Fla. 1st DCA 1993) (holding offer invalid because it failed to reference section 768.79; omitting reference "failed to adequately place defendants on notice that Latosynski was traveling under section 768.79 in addition to the rule"); see also Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005) (stating, "even a clear and unambiguous statute which imposes attorneys' fees or another penalty must be `construed' in favor of the common law").

Despite this authority, the plaintiff argues that failure to cite the statute in the settlement proposal is not fatal. He relies on language in the fifth district's opinion in Spruce Creek Development Co. of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). In Spruce Creek, the court noted that the issue of attorney's fees was moot, but, for guidance on remand, stated that the plaintiffs' settlement proposal was not void for failure to expressly reference section 768.79. The court deemed the omission "an insignificant technical violation of the rule." Id. at 1116. It reasoned that "[n]ow that there is only one statute governing offers of judgment, implemented by Rule of Civil Procedure 1.442, the purpose of Rule 1.442(c)(1) is met where either the rule or the statute is referenced." Id. We adopt the fifth district's position in Spruce Creek on this issue and certify conflict with the first and second district courts' decisions in Pippin and McMullen Oil Company.

In this case, the plaintiff submitted his proposal for settlement on August 13, 1999, at a time when only one statute, section 768.79, existed under which offer of judgment/proposal for settlement attorney's fees were awardable. Hence, the concern for clarity and certainty we expressed in Grip Development and other cases scrutinizing settlement proposals is not a factor here.

Accordingly, we reverse the order denying the plaintiff's motion for attorney's fees.

Reversed.

POLEN, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J., concurring specially.

I reach the same outcome, and I join in certifying conflict. But there are more apposite supreme court decisions, and I have a different take. Because of the pervasiveness of the issue involved, I think I should set down once again — this time more thoroughly — my own analysis of the problems with the court's policy of strict construction when attorneys fees are at issue.¹

The supreme court has long had a policy of strict construction in connection with attorneys fees. Recently in Willis Shaw Express Inc. v. Hilyer Sod Inc., 849 So.2d 276 (Fla.2003), the court approved a decision denying fees because of what may be a harmless defect in the offer. The district court had invalidated the offer, saying:

"[T]he offer of judgment statute and rule should be strictly construed because the procedure is in derogation of the common law and is penal in nature. Florida follows the common law approach to attorney's fees under which each party pays its own fees, absent a statutory or contractual provision to the contrary...."

"In addition, section 768.79 imposes a penalty for unreasonably rejecting a settlement offer. `Statutes imposing a penalty must always be construed strictly in favor of the one against whom the penalty is imposed and are never to be extended by construction.' Holmberg v. Dep't of Nat. Resources, 503 So.2d 944, 947 (Fla. 1st DCA 1987); see also TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995) (`Statutes awarding attorney fees in the nature of a penalty must also be strictly construed.') (Wells, J., concurring in part and dissenting in part). This rule is so well-cemented in Florida law that the Florida Supreme Court has applied the rule without a great deal of explanation.... The abundance of case law cited by both parties in this case demonstrates that courts have generally applied a strict construction to section 768.79 and Rule 1.442 by the frequency with which they invalidate unspecified offers." [e.s.]

Hilyer Sod Inc. v. Willis Shaw Express Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002). In approving the decision of the First District, the supreme court said that the language of rule 1.442 "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." [e.s.] Willis Shaw Express, Inc. v....