Oasis v. Espinoza

• Decision Date: 21 February 2007
• Docket Number: No. 3D06-569.,3D06-569.
• Citation: 954 So.2d 632
• Parties: Russell OASIS, Appellant, v. Alberto J. ESPINOZA and Amaro Food Enterprises, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

954 So.2d 632

Russell OASIS, Appellant, v. Alberto J. ESPINOZA and Amaro Food Enterprises, Inc., a Florida corporation, Appellees.

No. 3D06-569.

District Court of Appeal of Florida, Third District.

February 21, 2007.

Joel E. Perwin; Richard A. Friend, Miami, for appellant.

Cooney, Mattson, Lance, Blackburn, Richards & O'Connor and Warren B. Kwavnick, Fort Lauderdale, for appellees.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The plaintiff, Russell Oasis, appeals from an order denying his motion for attorney's fees and costs. We affirm.

Alberto J. Espinoza ("Espinoza") struck the rear end of the plaintiff's vehicle while driving a delivery truck owned by Amaro Food Enterprises, Inc. ("Amaro Food"). Count I of the plaintiff's second amended complaint sought judgment against Amaro Food and Espinoza jointly and severally, alleging that Amaro Food "negligently entrusted, and/or maintained" its truck, and that Espinoza "negligently operated and/or maintained" Amaro Food's truck. Counts II and III were against Amaro Food's insurer, Mercury Insurance Company of Florida ("Mercury Insurance"). In their combined answer, Amaro Food and Espinoza denied negligence, but admitted that Espinoza operated the truck with Amaro Food's consent.

Mercury Insurance settled with the plaintiff. Amaro Food and Espinoza, however, rejected the plaintiff's proposal for settlement and proceeded to trial. After final judgment was entered in favor of the plaintiff in the amount of $11,470.63 against Amaro Food and Espinoza, jointly and severally, the plaintiff moved for an award of attorney's fees and costs against defendants Amaro Food and Espinoza, jointly and severally, pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442.

The plaintiff argued that he was entitled to attorney's fees and costs based upon the proposal for settlement he had served on the defendants and the final judgment entered by the trial court, which was at least twenty-five percent greater than his proposal for settlement. The plaintiff's proposal for settlement provides as follows:

Plaintiff, Russell Oasis, by his undersigned counsel and pursuant to § 768.79 Florida Statutes and Florida Rule of Civil Procedure 1.442, hereby offers that Final Judgment be entered in this cause against Defendants, Alberto J. Espinoza and Amaro Food Enterprises, Inc., jointly and severally, and in favor of Plaintiff, Russell Oasis, in the total sum of Six thousand seven hundred fifty ($6,750.00) dollars for all of said Plaintiff's claims, including attorney's fees which attorney's fees are not a part of said Plaintiff's legal claims.

The defendants successfully argued in the trial court that the plaintiff was not entitled to an award of attorney's fees and costs because the plaintiff's proposal for settlement failed to comply with the requirements of Florida Rule of Civil Procedure 1.442(c)(3), which provides: "A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party."

In denying the plaintiff's motion for attorney's fees and costs, the trial court relied on Florida Rule of Civil Procedure 1.442(c)(3); section 768.79, Florida Statutes (2005); and the Florida Supreme Court's decision in Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005). As the issue in this appeal is whether the proposal for settlement complies with rule 1.442(c)(3) and section 768.79, we review the trial court's denial of the plaintiff's motion for attorney's fees and costs de novo. See Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006)(holding that "[t]he question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo").

In Lamb, the Florida Supreme Court held that "the plain language of rule 1.442(c)(3) mandates that a joint proposal for settlement differentiate between the parties, even when one party's alleged liability is purely vicarious." Lamb, 906 So.2d at 1042 (emphasis added). In the instant case, the plaintiff's joint proposal for settlement to defendants Amaro Food and Espinoza...