Goldy v. Corbett Cranes Services, Inc., 96-1238

• Decision Date: 11 April 1997
• Docket Number: No. 96-1238,96-1238
• Citation: 692 So.2d 225
• Parties: 22 Fla. L. Weekly D927 Scott GOLDY, Appellant/Cross-Appellee, v. CORBETT CRANES SERVICES, INC., etc., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 225

692 So.2d 225

22 Fla. L. Weekly D927

Scott GOLDY, Appellant/Cross-Appellee, v. CORBETT CRANES SERVICES, INC., etc., Appellee/Cross-Appellant.

No. 96-1238.

District Court of Appeal of Florida,

Fifth District.

April 11, 1997.

Larry Sands and Kimberly Sands of Sands White & Sands, P.A., Daytona Beach, for Appellant/Cross-Appellee.

John Edwin Fisher and Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Wack & Dickson, P.A., Orlando, and Gary M. Hellman of Kroll & Tract, Miami, for Appellee/Cross-Appellant.

PETERSON, Chief Judge.

Scott Goldy appeals the denial of his motion for sanctions pursuant to Rule 1.442, Florida Rules of Civil Procedure, the offer of judgment rule that allows a plaintiff to recover attorney's fees and costs when a verdict exceeds 125% of an offer of judgment. We affirm. By our affirmance, the appellee's cross-appeal is rendered moot.

Goldy's initial complaint was dismissed with leave to amend and to add additional defendants. Before amending the complaint, he submitted an offer of judgment to the defendant/appellee, Corbett Cranes Services, Inc. (Corbett). The offer was to expire March 6, 1991, thirty days after it was made in accordance with Rule 1.442. Goldy then amended his complaint in which new causes of action were alleged and additional defendants were named. Corbett then obtained from Goldy a gratuitous extension of time to March 29, 1991 to respond to the offer of judgment.

Corbett filed a motion to dismiss the amended complaint on March 14, 1991 and scheduled a hearing to take place after March 29, 1991, the expiration date of Goldy's extended offer of judgment. Corbett also filed a motion pursuant to Rule 1.090, Florida Rules of Civil Procedure, to enlarge the time within which it could respond to the offer of judgment since the hearing date was beyond March 29. Goldy then directed a letter to Corbett stating:

I have received a copy of your Motion to Enlarge the Time to Respond to our Offer of Judgment. I had agreed to an enlargement of the original time for responding to this Offer because I understood you had been seriously ill. In view of your current efforts to take advantage of the consideration which I gave you, I greatly regret having extended the time in the first place.

As I read and understand the applicable Rules of Procedure, this is not a situation in which the Court has the power to force a party to make or extend an offer of judgment. In fact, the Rule expressly allows a party to withdraw an Offer of Judgment at anytime. I assume that the consequences of withdrawal of an Offer before the full time provided in the Rule would be that no sanctions could be enforced if a subsequent judgment was more than 25% larger than the Offer which was withdrawn.

However, in this case the Offer already has been extended well beyond the period required by the Rule. Therefore in my interpretation of the Rule, I have every right to withdraw that Offer at anytime. In order to be sure that sanctions may be applicable if the ultimate judgment is more than 25% greater than the Offer, I do not intend to withdraw the Offer until March 29, the date on which I originally stipulated the Offer would be terminated. If the Offer has not been accepted by that date, it will be absolutely and finally withdrawn at that time. Regardless of any Court Order that may be entered after that date, we will no longer agree to accept the full liability insurance coverage applicable to this claim in settlement of the claims against all of your insureds. You may consider this letter as notice that the offer will be withdrawn and it will not be effective beyond March 29, 1991.

Corbett's motion to enlarge was never heard by the court in view of Goldy's absolute withdrawal of the offer on March 29, 1991, regardless of whether the court decided to extend the time.

Goldy's motion for sanctions was filed after a verdict exceeded his offer of judgment by 125%. Corbett responded with a motion to dismiss Goldy's motion. The trial court granted Corbett's motion to dismiss the request for sanctions finding, inter alia, that although the offer of judgment was timely, it was effectively withdrawn in the letter of March 25, 1991, and thereby rendered void.

Former Rule 1.442, Florida Rules of Civil Procedure provided:

RULE 1.442 OFFER OF JUDGMENT

* * * * * * (b) Time Requirements. To be effective, an offer of judgment must be served no sooner than 60 days after the offeree has filed its first paper in the action and no later than 60 days prior to trial, except that the offeree may serve a counteroffer within 15 days after service of an offer notwithstanding the time limits of this rule.

(c) Form of Offer.

(1) An offer of judgment may be made by any party or parties.

(2) The offer shall be in writing; shall settle all pending claims; shall state that it is made pursuant to this rule; shall name the party or parties making the offer and the party or parties to whom the offer is made; shall briefly summarize any relevant conditions; shall state the total amount of the offer; and shall include a certificate of service in the form required by Rule 1.080(f).

* * * * * *

(f) Acceptance, Failure to Accept and Rejection.

(1) Offers of judgment shall be deemed rejected for purposes of this rule unless accepted by filing both a written acceptance and the written offer with the court within 30 days after service of the offer. Upon proper filing of both the offer and acceptance, the court shall enter judgment thereon.

* * * * * *

(3) A rejection of an offer terminates the offer.

(g) Withdrawal. An offeror may withdraw the offer in a writing served on the offeree before a written acceptance is served on the offeror. Once withdrawn in this manner, the offer is void.

(h) Sanctions.

(1) Upon motion made ... after the return of the verdict in a jury action ... the court may impose sanctions equal to reasonable attorneys fees and all reasonable costs of the litigation accruing from the date the relevant offer of judgment was made whenever the court finds both of the following:

(A) that the party against whom sanctions are sought has unreasonably rejected or refused the offer, resulting in unreasonable delay and needless increase in the cost of litigation; and

(B) that either

* * * * * *

(ii) an offer to accept payment was refused and the damages awarded in favor of the offeror and against the offeree are more than 125 percent of the offer.

(2) In determining entitlement to and the amount of a sanction, the court may consider any relevant factor, including:

(A) the merit of the claim that was the subject of the offer;

(B) the number, nature and quality of offers and counteroffers made by the parties;

(C) the closeness of questions of fact and law at issue;

(D) whether a party unreasonably refused to furnish information necessary to evaluate the reasonableness of an offer;

(E) whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties;

(F) the fact that, at the time the offer was made and rejected, it was unlikely that the...